Dismissed after 16 years without a single warning: a capability case that failed the fairness test
A territory sales executive with 16 years' service was unfairly dismissed for poor performance without any prior warnings or fair procedure. The tribunal awarded £33,819 in compensation, including a 25% uplift for failing to follow the ACAS Code.
2 min read · Last updated 18 May 2026
Case details
- #long-service
- #no-warnings
- #acas-code-uplift
- #polkey-zero
- #covid-impact
- #notice-pay
- #unlawful-deduction
Key facts
- The claimant was employed as a territory sales executive from 30 March 2004 until 3 April 2020.
- The respondent dismissed the claimant on 10 January 2020 for poor performance without prior warning or a fair procedure.
- The claimant had no recorded warnings on her disciplinary record and her sales figures were comparable to colleagues.
- The respondent admitted it did not warn the claimant the meeting could result in dismissal, did not consider alternative employment, and did not inform her of the right to appeal.
- The tribunal found the claimant did not commit gross misconduct by driving away in the company car after a heated meeting on 30 January 2020.
- The claimant was awarded a 25% uplift for the respondent's unreasonable failure to follow the ACAS Code of Practice.
Timeline
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Employment started
Claimant commenced employment as a territory sales executive.
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Performance concerns raised by email
Respondent emailed claimant with analysis figures indicating inadequate performance, using language like 'absolute rubbish'.
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Trial period set
Respondent placed claimant on a trial requiring 100 account visits in 67 days, without giving her an opportunity to respond in person.
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Claimant informed of trial failure
Respondent emailed claimant stating she had failed the trial, alleging she took 17 days off.
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Dismissal meeting
Respondent met claimant at a pub and told her she was dismissed for poor performance; claimant agreed to work until end of January.
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Final meeting and car incident
Heated meeting where respondent said 'no one in the company liked her'; claimant drove away in company car. Tribunal found no gross misconduct.
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Effective date of termination
Claimant's 12-week notice period ended.
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ET1 claim presented
Claimant presented her claim to the employment tribunal.
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Liability hearing started
Three-day hearing on liability began.
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Liability judgment
Reserved judgment finding unfair dismissal, unlawful deduction, and breach of contract.
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Remedy hearing
Hearing to determine compensation.
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Remedy judgment
Final award of £33,819.07 including basic award, compensatory award, notice pay, and unlawful deduction.
The legal issue
The tribunal had to decide whether the dismissal for poor performance was fair in all the circumstances, including whether the employer followed a fair procedure and acted within the band of reasonable responses.
The outcome
The tribunal found the dismissal unfair. The employer admitted it did not warn the employee the meeting could result in dismissal, did not consider alternative roles, and did not inform her of the right to appeal. The employee had no recorded warnings and her sales figures were comparable to colleagues.
Compensation breakdown:
- Basic award: £9,739.20
- Compensatory award: £21,101.60
- Notice pay: included in compensatory award
- Unlawful deduction: included in compensatory award
- Total: £33,819.07
- No Polkey or contributory fault reductions applied.
Lessons & takeaways
- Long-serving employees are entitled to a fair process before dismissal for poor performance, including warnings and a chance to improve.
- Admitting procedural defects (like no warning or right of appeal) can be fatal to defending an unfair dismissal claim.
- Failing to follow the ACAS Code of Practice can result in a 25% uplift on compensation.
- Driving away in a company car after a heated meeting is not automatically gross misconduct if there is no dishonesty or serious breach.
- Employers should consider alternative employment before dismissing for capability, especially for long-serving staff.
A 16-year career ended without a warning
This case shows what can happen when an employer jumps straight to dismissal for poor performance without following basic fair procedures. The employee, a territory sales executive with 16 years' unblemished service, was told her performance was inadequate via an email using language like 'absolute rubbish'. She was then set an unrealistic trial of 100 account visits in 67 days without being given a proper opportunity to respond in person. When she allegedly failed the trial, she was summoned to a meeting at a pub and dismissed on the spot.
The employer admitted it had not warned her the meeting could result in dismissal, had not considered alternative employment, and had not told her about the right to appeal. These are fundamental flaws in any dismissal process, especially for someone with such long service. The tribunal also noted that the employee had no recorded warnings and her sales figures were comparable to colleagues, undermining the claim that her performance was uniquely poor.
What the employer could have done differently
The employer could have avoided this outcome by following a proper capability procedure: giving clear warnings, setting achievable targets, offering support, and considering alternative roles. Instead, it acted hastily and without any of the safeguards that employment law expects. The tribunal also rejected the employer's argument that the employee committed gross misconduct by driving away in the company car after a heated final meeting, finding this was not a serious enough act to justify summary dismissal.
Why this matters for similar claims
This case is a reminder that even where an employer genuinely believes an employee is underperforming, the process must be fair. The 25% uplift for failing to follow the ACAS Code adds significant financial penalty. For employees with long service, tribunals expect a particularly careful approach. Anyone in a similar position should note that procedural failures can turn a potentially fair reason into an unfair dismissal, and that compensation can include notice pay and other sums if the employer's actions are found to be a breach of contract.
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