Mr A M Said v The Department of Health and Social Care: 2200225/2024

EMPLOYMENT TRIBUNALS

Case No 2200225/2024

Between

Mr A M SaidClaimant

The Department of Health and Social CareRespondent

Before

Employment Judge Forde

Miss T Jones (instructed by Barrister) for claimant

Mr M Harris (instructed by Barrister) for respondent

Date 14 November 2025

JUDGMENT

The judgment of the Tribunal is as follows: Unfair Dismissal

[1]The complaint of unfair dismissal is not well-founded and is dismissed. The claimant was fairly dismissed following a fair procedure.

REASONS

[1]By way of a claim form dated 5 January 2024, the claimant pursued claims of unfair dismissal, direct disability discrimination, discrimination arising out of the disability, indirect disability discrimination and failure to make reasonable adjustments.

[2]In summary, the claimant says that after starting his employment with the Civil Service on 25 March 2002 he transferred to the respondent on 18 January 2021 and to the position of financial business partner grade 7. Prior to his appointment, it is the claimant’s position that he held a similar position within the respondent on an interim basis from December 2018 until his appointment. Prior to that appointment, it held the position of senior executive officer and within the Ministry of Justice, another government department.

[3]The claimant’s case is that following the inception of a performance improvement process instigated by the respondent primarily arising from concerns held about the claimant’s performance by his line manager, Hannah Stout. Prior to coming under Ms Stout’s line management, the claimant says that he was managed by Shereen Jabeer who left the first respondent in April 2021.

[4]The claimant says that Ms Stout was overly critical of him, told him that he did not speak properly, took over all of his tasks and required him to seek permission prior to responding to emails. The claimant alleges that his role had changed and that regular, formal performance health checks would commence. This conduct alleged against Ms stout is described as harassing and bullying and led to the claimant raising first and informal grievance in late October 2021 and thereafter further grievances.

[5]In time, the claimant moved through the respondent’s performance management process which evolved from being an informal process to a formal one. There are three levels to the respondent’s performance management process and it is the case that each review of the claimant’s progress against a number of performance objectives, the claimant was assessed as underperforming by the respondent. The claimant says that he was performing there are a number of reasons why the assessment of his performance was wrong.

[6]The outcome of the claimant’s final grievance lay in the hands of Mr Tritton, deputy director, investment appraisals, major projects and capital delivery portfolios as decision manager. He did not uphold the claimant’s grievance and the claimant asserts that this decision was not justified.

[7]On 9 February 2023 the claimant’s line manager changed to Mr James Vallance, grade 6 head of NHS financial policy, accountability and briefing and he remained the claimant’s manager until 6 September 2023, the date of the claimant’s dismissal.

[8]Upon the conclusion of the claimant’s grievance conducted by Mr Tritton, Mr Vallance recommenced the claimant’s performance improvement plan, a decision the claimant contends was unreasonable. On 16 February 2023, Mr Vallance commenced stage 3 of the performance process which was paused momentarily due to the claimant sickness absence between 27 February 2003 and 20 March 2023. There were further breaks in the progression of the process. However on 31 August 2023, the claimant attended a stage three performance management meeting with Mr Vallance the outcome of which was that he decided that the claimant should be dismissed on the grounds of poor performance.

[9]There was a case management conference before Employment Judge Salter on 8 November 2024. At that hearing, and after hearing submissions from both parties and with reasons given at the time, he determined that the claimant was disabled within the meaning of the Equality Act 2010. Accordingly, the only claim to be considered is unfair dismissal.

Evidence

[10]The tribunal had the benefit of two bundles namely a witness statement bundle of 138 pages and a documents bundle numbering just over 2000 pages. Witness statements have been prepared on behalf of the claimant, Ms Stout, Mr Vallance, Mr Ed Jewell, deputy director NHS finance and the claimant’s countersigning manager throughout, Mr Tritton and Ms Jude Howard, head of reward and employee relations and the appeal manager in respect of the claimant’s appeal against dismissal.

[11]All witnesses gave sworn evidence to the tribunal.

[12]The claimant gave evidence first across approximately two days. This is a long time in my opinion for a case of this. It is my finding that the reasons behind this lengthy period is due to English not being the claimant’s first language, the claimant’s propensity to answer his own questions as opposed to the questions put to him, and the claimant’s inability to engage with the questions that in a way consistent with the contents of the questions concerned.

[13]As to the reasons why the claimant was unable to engage with the questions in the way that he would have been expected to. I consider that at some points the claimant simply did not want to engage with the more difficult aspects of his claim. It appeared lost on the claimant that he had to provide evidence to support his case. At various points in his evidence, the claimant appeared diffident, unengaged and performative.

[14]At times I was concerned as to whether or not the claimant the claimant understood either the words contained within a document or the question being put to him. Such an example arose during his cross-examination when he was referred to an email sent by him to Manuela Solera- Deuchar dated 28 October 2022 (p.620) in which the claimant says, ‘I was told I would be would somewhere else…’. During cross-examination, the claimant conceded that he had been told that it might be possible or in other words that he could be moved as opposed to would be moved. The claimant offered his opinion that both form of words i.e. would and could amount to the same thing and expressed surprise when I explained to him that they mean different things. This alone supports my view that the claimant is not a reliable historian because he is prone to reaching views or opinions based upon a misconceived understanding or interpretation of facts, events and words. There were other examples provided by the claimant in his evidence.

[15]At paragraph 23 of her witness statement, Ms Stout says the following: “As time went on however, I realised that the reason Abdallah had not been forthcoming or detailed about his work and his views on it, was because he unfortunately did not have the skills needed to do the role effectively and describe his portfolio and assessment of the actions needed. His comments and description of his work demonstrated that he viewed the role as one that was transactional,…”

[16]In short, Ms Stout’s observations of the claimant are the same as mine; the claimant was not forthcoming or detailed at critical times in his evidence and it appeared to the tribunal that the claimant saw his participation in the cross examination process as being transactional in that he was prone to providing short answers without any detail to explain his position.

[17]At other times, I found the claimant’s evidence to lack credibility and plausibility. Time and again during the course of his cross-examination he was taken to documents that he referred to as evidencing his documentary recording of allegations of bullying and harassment. For example, the claimant relies on page 2030 of the bundle which contains an email to him from Ms Stout dated 31 March 2021. In evidence, he maintained his position that this amounted to an example of Ms Stout being overly critical of him. It is my finding that it is impossible to detect any criticism whatsoever from this email and this leads me to wonder whether this would have been obvious to the claimant.

[18]Further, when asked whether Ms Stout was supportive of him he told the tribunal replied that she was not. When taken to various pages in the bundle containing email correspondence between the two, and in which it can be clearly seen that Ms Stout is offering support to the claimant, the tribunal noted that begrudgingly but inevitably the claimant accepted that Ms Stout had indeed been offering him support. Eventually, the claimant was forced to concede during evidence that Ms Stout was supportive and had not harassed and bullied him when he was asked to consider an email dated 21 October 2022 (p.524) sent by Ms Stout.

[19]An example of a document relied upon by the claimant which does not assist him can be seen at page 397 of the bundle which the claimant relies upon as evidencing Ms Stout’s alleged bullying and harassment of him on the basis of her taking over all of his tasks. The page shows a chat over Microsoft Teams between 25 and 26 October 2021 and specifically the claimant relies on these words: Claimant: 26/10/2021 at 12:06: Hi Hannah, would you like me to respond to Simon Reiss’s email. It is in relation to the south we cleared a few he months back. At the time, we did not have an estimate for the Covid costs. The Covid costs would be financed from the existing BSA budgets. Ms Stout: 26/10/2021 at 12:16: yes please if you could pick that up

[20]This is a clear example of an anodyne communication between a line manager and subordinate of the kind that happens up and down the country every day of the week. It is difficult to fathom how the claimant says that this is evidence of work being taken from him. When asked why he considered this to be harassment or bullying, the claimant said that he had been intimidated by Ms Stout as a consequence of him being subjected to an ‘elevated level of scrutiny’ a form of words that can be seen in an email from Ms Stout to the claimant dated 24 October 2022 (page 629).

[21]My interpretation and finding of this document was that Ms Stout was merely reiterating that the claimant was being performance managed, that he would be(a) supported and

(b) subject to observation and monitoring. The claimant will not have liked this and certainly did not accept it but it is nonetheless the case that what Ms Stout was telling him was obvious and essential and therefore it is difficult for me to understand how the claimant could assert that he was harassed, bullied, and intimidated by Ms Stout in these circumstances or at any time.

[22]Consequently, I found the claimant at times to be unreliable but in the main he provided evidence consistent with his claim. When I consider the totality of his evidence I find the claimant to be a witness whose evidence lacked credibility.

[23]Ms Stout was cross-examined for approximately one day. I found her to be a highly impressive witness. Not only did she have a very good grasp of the factual matrix relevant to the claim but she was able to qualify her answers with thoughtful, credible and honest answers. I have no difficulty in accepting her evidence in its entirety.

[24]Mr Vallance gave evidence after Ms Stout. Again, he retained a good grasp of the factual matrix relevant to the claim and was able to provide robust, credible and honest answers to the questions put to him.

[25]Mr Jewell gave evidence to the tribunal which was straightforward, relevant and credible. I have no difficulty in accepting his evidence in its entirety.

[26]Mr Tritton and Ms Howard provided evidence briefly to the tribunal covering their relatively modest involvement in the factual matrix relevant to this claim. I have no reason to doubt their evidence whatsoever as both were able to provide straightforward and credible answers to the tribunal. Issues to be determined Unfair Dismissal 1. Was the claimant dismissed pursuant to section 95(1) ERA 1996? 2. Did the respondent have a potentially fair reason to dismiss the Claimant pursuant to section 98(1) and (2) ERA 1996? R1’s case is that the Claimant was dismissed for capability. 3. If so, did the respondent act reasonably in the circumstances in treating that reason as a sufficient reason for dismissing the claimant as required by S98(4) ERA 1996? 4. The claimant asserts that his dismissal was unfair by reason of the matters set out in his paragraph 48, namely that the Performance Management process was not justified. 5. Did the claimant’s dismissal fall within the band of reasonable responses available to the respondent at the time of the dismissal? 6. Did the respondent follow a fair procedure when dismissing the claimant? 7. If the Tribunal finds that the claimant was unfairly dismissed:7.1 Did the claimant contribute to his dismissal by any culpable conduct?

7.2 If the Tribunal finds that the dismissal was procedurally flawed in any way, would the claimant have been dismissed in any event had the correct procedure been followed? Law and procedure Unfair dismissal – section 94 ERA 1996

Issues to be determined

[27]The dismissal of the Claimant will be unfair unless the Respondent can show that the reason (or principal reason) for the dismissal was one of the potentially fair reasons. The fair reasons are found in section 98 ERA 1996 and read as follows:a. relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do so,

b. relates to the conduct of the employee,

c. is that the employee was redundant, or

d. is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

[28]For the purposes of “capability” this should be assessed with reference to the Claimant’s skill, aptitude, health or any other physical or mental quality. The capability must relate to the work that the Claimant was employed to do (section 98(2) ERA 1996). In practice, capability dismissals fall into two main groups: dismissal because of employees’ poor performance or because of employee’s ill health.

[29]Once the employer has established that capability in the form of poor performance is the reason for an employer’s dismissal under Section 98(1) ERA 1996 , the tribunal must then decide if the employer acted reasonably in dismissing the employee for that reason. The determination of this question depends on whether in the circumstances the employer acted reasonably or unreasonably in treating the poor performance as a sufficient reason for dismissing the employee, and shall be determine in accordance with the substantial merits of the case.

[30]The tribunal will have to be satisfied that the employer honestly believed, on reasonable grounds, that the employee was incapable of performing their job but, with regard to the overall reasonableness of that decision, will consider whether management failed to discharge its own responsibilities towards the employee. An important element of this is whether the employer has communicated what is expected of the employee and whether the employer have provided the necessary support and training.

[31]Capability is defined in section 98(3)(a) ERA 1996 as ‘capability assessed by reference to skill, aptitude, health or any other physical or mental quality’. In all cases, this case included, the incapability alleged must relate to the ‘work of the kind which the [employee] was employed by the employer to do close ‘(section 98(2)(a) ERA). That said, a dismissal for incapacity may be fair even though the employee can still perform some of his or her contractual duties (see Shook v Ealing London Borough Council

1986 ICR 314

, EAT).

[32]It is for the employer to set the standards. Employees and the tribunal cannot substitute their own view of an employee’s competence. Further, employers can insist on levels of performance that are higher than those of comparable institutions (see for example Fletcher v St Leonard’s School of EAT 25/87). One of the issues arises in this case was whether or not the duties of the claimant changed meaningfully or significantly or at all and whether this impacted the assessment of his performance.

[33]That said, standards of performance are not static and are liable to change as the business or the role involves a new technology or equipment becomes available.

[34]Where an employer seeks to rely on incapability as the grounds for dismissal as is the case here, the onus is on the respondent to show that it was the actual reason or principal reason for dismissal. As per Lord Denning MR in the case of Alidair Ltd V Taylor

1978 ICR 445

, CA: ‘whenever a man is dismissed incapability or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable or incompetence. It is not necessary for the employer to prove that he is in fact incapable or incompetent.’ Putting it another way, and from the same case, the test of a fair capability dismissal (aside from procedure) has two elements namely does the employer honestly believe that its employees are incompetent or unsuitable for the job and are the grounds for that belief reasonable. Alidair remains good law irrespective of its vintage.

[35]The practical implications in terms of the modern interpretation of the law in respect of establishing capability is that the tribunal has decide whether there was material in front of the employer at the time of the employee’s inadequacy or unsuitability and on which it was reasonable to dismiss.

[36]The incompetence of managers is often difficult to measure and prove. In Cook v Thomas Linnell and Sons Ltd

1977 ICR 770

, EAT, the EAT said that if an employer has genuinely come to believe over a period of time that a manager is incompetent, that in itself is evidence of incapability. However, it will be necessary to see whether there is supporting evidence. This may include evidence of a fall-off in trade or complaints from customers or colleagues.

[37]Dismissal for poor performance will not be fair unless the following key elements are present:a. A proper investigation into the problem has taken place,

b. The employee has been made aware of the problems and been given an opportunity to improve within a realist timescale,

c. The employee has been provided with appropriate support and possible training,

d. The employee’s progress is reviewed during the review period, and

e. The employee is offered a right of appeal against the decision to dismiss.

[38]The aspect of fairness will usually be split into two parts. Firstly, did the employer follow a fair procedure and secondly, did the employer act reasonably in treating the reason as a sufficient reason for dismissal. In Polkey v AE Dayton Services Ltd

[1987] IRLR 503

(HL) , it was established that: where a dismissal is procedurally unfair, the employer cannot invoke a “no difference rule” to establish that the dismissal is fair, which argues that the dismissal should be regarded as fair because it would have made no difference to the outcome.

[39]The test as to whether the Respondent acted reasonably in section 98(4) of the ERA 1996 is an objective one. It is for the Tribunal to decide whether the employer’s decision fell within the reasonable responses that a reasonable employer would have made given the circumstances of the case. Failing to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures may result in compensation being increased by up to 25% if the employer has failed to consider the code when deciding whether a dismissal is fair and whether that fair procedure has been followed.

[40]There is no obligation upon an employer to offer employment in a subsidiary position, even where the employee has reached his or her position through promotion. In other words, there is no automatic right to return to an old job unless there is a provision to that effect in the contract. The employer’s duty to consider redeploying the employee will depend upon the circumstances in each and every case (see Bevan Harris Ltd (t/a The Clyde Leather Co) v Gair

1981 IRLR 520

, EAT). Findings and decision

[41]I make the following findings of fact based upon the evidence presented to the tribunal during the course of the hearing and have made findings on the balance of probabilities in all cases.

[42]In my finding, the vast majority of the respondent’s response is made out. This in part reflects the substantial challenge that any claimant faces in disputing a capability dismissal. But it also reflects my findings as to the credibility and acceptability of the respective witnesses, the extensive documentary evidence contained within the bundle that supports the respondent’s case and by contrast, the paucity of evidence presented in support of the claimant’s case as alluded to above.

[43]I find on the evidence placed before the tribunal, that at all stages that are relevant to the decision to dismiss the claimant including the provision of warnings to the claimant and the assessment of the claimant’s performance at the various stages of informal PIP and thereafter the MPP, to have been reasonable, that they were acquired following a reasonable enquiry and based upon honest beliefs and reasonable grounds in light of the circumstances and evidence presented to Ms Stout and thereafter to Mr Vallance at the material times.

[44]On 18 January 2022 Ms Stout held a Performance Health Check with the claimant where she raised concerns about his performance in accordance with the Managing Poor Performance Process (“the MPP Process”). Ms Stout subsequently sought to address the claimant’s poor performance during daily conversations, regular 121 meetings, and through the implementation of an informal Performance Improvement Plan (“PIP”).

[45]On 15 February 2022 Ms Stout met with the claimant to discuss his progress against the informal PIP. It was at this meeting that the claimant raised concerns about his health, claiming that it was a result of the stress caused by the MPP Process, and requested a managed move which Ms Stout agreed to explore. The claimant declined Ms Stout’s offer to refer him Occupational Health (“OH”).

[46]On 28 February 2022 Ms Stout met with the claimant again to discuss his progress. Ms Stout identified the areas where the claimant’s performance needed significant improvement and I have found this assessment to have been reasonable and honestly held. Ms Stout explained to the claimant that a managed move was not appropriate given he was being performance managed but that he could apply for any vacancies. The claimant subsequently applied for three Grade 7 roles without success.

[47]On 17 May 2022 Ms Stout met with the claimant again to review progress against the informal PIP. The claimant was provided with detailed feedback, including from a wide range of stakeholders, and was given the opportunity to respond. Ms Stout reasonably determined that the claimant’s performance remained unsatisfactory and invited him to a stage 1 formal performance meeting in line with the MPP Process.

[48]On 24 May 2022 the claimant raised an informal grievance against Ms Stout, alleging bullying and harassment. Mr Jewell met with the claimant to discuss his complaint and subsequently conducted a thorough investigation.

[49]On 25 May 2022 Ms Stout held a formal stage 1 performance meeting with the Claimant in line with the MPP Process. Ms Stout reiterated the areas of concern about the claimant’s performance, and he was given the opportunity to respond. The areas where the claimant was falling below the standard at this time are set out at paragraph 98 of Ms Stout’s witness statement. I note that what Ms Stout says here was not challenged during the course of her cross-examination. Specifically, she identifies the following areas where she observes the claimant was falling short in his performance:(i) I had to regularly step in to address gaps in the quality of his work, or to attend key meetings with him due to his limitations at managing stakeholders, i.e. the ringfencing paper referred to in paragraph 95 above is an example of the where the draft was so limited and missed some of the strategic fundamentals, that I needed to invest significant time in review to go over all the areas he had missed and explain why, essentially doing the thinking on his behalf and undertake that key element of his role. This was a frequent occurrence, and this is just an illustrative example. It is not a sustainable model to function effectively as a team and it meant resources were distributed very thinly.

(ii) In key meetings with stakeholders, Abdallah could not remember the key issues that were discussed when summarising the content of meetings afterwards or be able to describe how it would impact his work and the actions he would take. This meant it was impossible for me to be confident he could effectively operate independently of me.

(iii) His briefings in stakeholder meetings were confused and very rambling to such an extent that I could see clearly that stakeholders could not understand the points he was trying to make, which required both me and Julia to step in and to explain the issues and draw out the links.

(iv) I also had real concerns that Abdallah was not thinking ahead and managing his portfolio in a strategic workplan, rather he was preparing a list of simple transactional tasks.

(v) Abdallah’s inability to look ahead and plan delivery and manage risk was also an issue as it meant he needed an amount of direction from me that was not appropriate at G7 level, where the expectation is that the G7 to some extent owns and drives forward their own portfolio.

(vi) I also had concerns about how he was leading and managing Julia. She reported to me that she felt very unsupported with minimal discussion of the work and her role. And further at paragraph 99: “Abdallah’s underperformance also had a real impact on the distribution of work as it meant I had to step in and do much more of the G7 work that should have been picked up by him. It also meant that Julia had to step into Abdallah’s G7 responsibilities. This resulted in resources being spread thinly, less time allocated across portfolios and an impact on stakeholders and service to customers. I was also concerned about the impact on wellbeing of the team regarding the persistent underperformance. It was simply not sustainable. (My emphasis)”

[50]In my finding, Ms Stout sets out significant and extensive performance failings on behalf of the claimant. These are observations that are almost identical to the ones that she brought to the claimant’s attention at the material time. They are clearly explained, reasoned and detailed. In my finding, it simply is not open to the claimant to say that it was not clear where and how he was failing to meet the levels of performance expected of him.

[51]I find that Ms Stout’s concerns as set out above came about as a result of a reasonable investigation based upon reasonable and honest evaluations of the claimant’s performance. In reaching this finding, I reject the claimant’s criticisms and his assessment of her performance, criticisms which I find to be wholly unsupported by any evidence whatsoever within the bundle and inadequately supported by the claimant’s evidence which I found to be inconsistent, lacking in credibility and at points to have been misconceived.

[52]The claimant was absent due to sickness from 6 – 7 July 2022 due to chest pains. On 22 July 2022 the Claimant was informed that his grievance against Ms Stout was not upheld and I find that it was entirely reasonable for this finding to have been reached. Mr Jewell concluded that Ms Stout’s conduct was consistent with the MPP Process, and he found no evidence of bullying or harassment. Mr Jewell noted that Ms Stout had offered the claimant support to improve his performance including coaching and a buddy/peer support.

[53]On 29 July 2022 the claimant was issued with a first written warning on the grounds of poor performance. The claimant entered a 4-week review period during which his performance continued to be monitored against a stage 1 development plan. As I have already stated, this decision was entirely reasonable and was based on a thorough, reasonable determination of the claimant’s performance.

[54]The claimant appealed the decision to issue him with a first written warning and on 3 August 2022 he raised a grievance against Ms Stout’s application of the MPP Process. The respondent’s Civil Service HR department (“CSHR”) advised to consider the appeal and grievance together given that they both concerned the application of the MPP Process. The review period was paused pending resolution of the appeal.

[55]The appeal was referred to Mr Ben Widdicombe (Deputy Director – Covid-19 Inquiry Response Unit). On 16 September 2022 Mr Widdicombe informed the claimant that his appeal was not upheld. I not been able to find that there this decision was not justified as asserted by the claimant. I find that Mr Widdicombe reasonably determined that Ms Stout had behaved reasonably following a full and thorough investigation and I reach this finding on the basis that it is not challenged at all by the claimant and from my own review.

[56]The review period recommenced, and Ms Stout continued to hold meetings with the claimant to discuss and improve his performance. Ms Stout again suggested that the claimant be referred to OH to which he agreed. The OH report dated 7 October 2022 advised that the claimant had recently experienced anxiety, insomnia and mood changes that he attributed to stress in the workplace and that he had no history of poor mental health prior to this. The claimant was considered to be suffering from situational stress that was not linked to a long-term mental health condition. The claimant was deemed fit for work, but the advisor recommended mediation and an early resolution to the workplace issues. The claimant subsequently rejected Ms Stout’s offer of mediation.

[57]Ms Stout continued to assess the claimant’s performance as unsatisfactory, and invited him to a stage two formal performance meeting in line with the MPP Process. This meeting took place on 12 October 2022 and the claimant was given the opportunity to respond to the feedback on his performance.

[58]On 19 October 2022 the claimant was issued with a final written warning on the grounds of poor performance. He entered a 4-week review period during which his performance continued to be monitored against a stage 2 development plan. Again, I find that the claimant has failed to provide any evidence to undermine my assessment that this was a reasonable step for the respondent having regard to the evidence before the tribunal. Further, it is clear that on the evidence available, the claimant’s performance had failed to improve to the required extent.

[59]Within the bundle there is a clear trail of documents that detail the expectations that the claimant was subject to, and the areas required for improvement. The claimant’s criticisms can be summarised as being the evaluation criteria utilised by Ms Stout was wrong and wrongly applied on the basis that it was subjective. However, when asked to explain what this meant on a practical level the claimant’s answers were often brief and repetitive with his basic position being that Ms Stout was subjective in her assessment. The claimant did not appeal this decision.

[60]The claimant subsequently refused to attend any 1-2-1 meetings with Ms Stout and on 28 October 2022 he raised a further grievance against her, alleging bullying and harassment. The MPP Process was again paused pending the resolution of this grievance.

[61]The claimant’s grievance was investigated by Gareth Young (Deputy Director) who determined that there was no evidence of bullying or harassment. Mr Young determined that Ms Stout should be commended “for the rigorous and supportive way she has conducted herself” throughout the MPP Process.

[62]The grievance was referred to the Decision Maker; Paul Tritton (see details above), who informed the claimant on 24 January 2023 that his grievance was not upheld. Mr Tritton gave evidence to the tribunal and his evidence was accepted in full. His witness statement sets out the fours terms of reference (see p.125 of the witness bundle).

[63]Mr Tritton’s decision to not uphold the grievance is recorded in his witness statement in the following way: “26. Firstly, whilst Mr Said felt the performance improvement plan was not justified, I felt differently and that it was justified. I made this decision based on the investigation report and I had not seen any further evidence to change the conclusion of Gareth’s investigation report. I am aware that this point forms part of his claim in that he felt he was capable to carry out the core behaviours as stated in his ET claim form on page 36.27. Gareth’s investigation report had concluded that the performance management process had been conducted rigorously and fairly, and that Hannah had conducted herself in a supportive way. Again, I had not seen any further evidence to change the conclusion of the investigation report.

28. I appreciate that in my outcome letter I could have addressed his appeal point that the tasks in the improvement plan were too subjective, with too much scope for differences of view on whether they were being met. However, I felt that Gareth’s investigation report was very thorough and clear on that issue and Ed Jewell had previously concluded the improvement plan was fair and reasonable. In hindsight, I accept I could have addressed this specifically in the outcome letter, but it felt quite clearcut to me.”

[64]I accept this evidence. Mr Tritton determined that there was no evidence to indicate that the PIP was not justified or that the MPP Process had been conducted anything but rigorously, fairly and supportively. Mr Tritton found no evidence of bullying or harassment. The claimant did not appeal this decision.

[65]In cross-examination, Mr Tritton was asked about the point that he addresses head-on in paragraph 28 of his witness statement, specifically whether or not the tasks in the improvement plan were too subjective. In short, it was his view that they were not in that they reflected the reality of the claimant’s role and the necessity for senior operatives such as the claimant to adapt to the changing needs of the role arising from the demands of ministers, such as the situation arose as a consequence of the merger of the departments of health and social care. In any event, he felt that Mr Young had adequately investigated the issues that the allegations raised by the claimant simply were not made out on the facts and evidence presented to both him and Mr Young. I have no reason to disagree with Mr Tritton’s assessment on the basis that I find it was reasonably acquired.

[66]On 9 February 2023 Mr Vallance replaced Ms Stout as the claimant’s line manager. He explained that, despite the claimant’s desire for the process to be dispensed with, the MPP Process would continue in accordance with the respondent’s Managing Poor Performance Advice Policy. Mr Vallance provided the claimant with an updated PIP to reflect the work that needed to be delivered at that time, against which his performance would be assessed.

[67]On 14 February 2023 the claimant asked Mr Vallance to withdraw the PIP and stop the MPP Process. While the claimant says that he ignored this request, I find that he did not and this is evidenced by the meeting between the two men on 15 February 2023 to discuss his request during which Mr Vallance explained that the MPP Process would continue as there remained evidence of his poor performance. The review period recommenced on 17 February 2023 and the claimant stated on 21 February 2023 that he would not engage with the PIP.

[68]The claimant was absent due to sickness from 28 February - 20 March 2023 due to anxiety / stress at work, during which time the MPP Process was paused. The claimant had been absent for 16 working days over the previous 12 month rolling period thereby exceeding the 14-day trigger point under the First Respondent’s Attendance Management Procedure (“AMP”).

[69]On 21 March 2023 the claimant returned to work. The claimant again asked Mr Vallance to stop the MPP Process which was refused with the explanation that while evidence of poor performance existed, the MPP Process would continue. In order to assist the claimant Mr Vallance paused the remainder of the review period until after Ramadan (22 March – 20 April) and suggested that the claimant be re-referred to OH. The claimant was informed that he would be invited to an attendance management meeting in line with the AMP as he had exceeded the 14-day tigger point. This meeting was intended to take place on 11 April 2023 but was postponed pending the OH report. It took place on 1 June 2023 (below).

[70]On 28 March 2023 the claimant declined to attend any 1-2-1 meetings or Performance Health Checks with Mr Vallance and asked for any future communications to be in writing which was agreed.

[71]On 13 April 2023 Mr Vallance shared the claimant’s objectives with him again and asked him to review them and advise if he had any concerns. The claimant did not respond.

[72]On 17 April 2023 the claimant raised a grievance against Mr Vallance, alleging that he had ignored his health concerns and continued to pursue the MPP Process. However, the respondent’s Grievance Policy states that the policy is not to be used to deal with complaints arising from the application of other policies and procedures that include an appeal mechanism, for example poor performance.

[73]The Claimant was absent due to sickness from 24 - 26 April 2023 and 4 - 10 May 2023 due to facial cellulitis. This delayed the recommencement of the review period. On 9 May 2023 the claimant attended a telephone OH appointment. The OH advisor recommended a stress risk assessment, clear objectives in the claimant’s PIP, the ability to take ad hoc breaks and additional management support with a pastoral focus. On 24 May 2023, upon the claimant’s return to work, Mr Vallance conducted a stress risk assessment with the claimant and offered him support from the Grade 7 who had covered his workload in his absence.

[74]On 1 June 2023 the Mr Vallance conducted a formal unsatisfactory attendance meeting with the claimant in line with the AMP. The claimant stated that he did not need any reasonable adjustments, just for the MPP Process to be stopped. Mr Vallance explained to the claimant that it was not possible to stop the MPP Process and suggested the following adjustments in line with OH advice:(1) adhoc breaks;

(2) changes to his working pattern; and

(3) a Grade 6 to offer pastoral support. The claimant was not however receptive to any of them. Mr Vallance suggested to the claimant that he manages his annual leave so that he has regular breaks throughout the year, but the claimant said he was unable to do this. The claimant was encouraged to utilise the First Respondent’s Employee Assistance Programme.

[75]At this meeting, Mr Vallance queried whether the claimant would benefit from any further clarification of his performance objectives and suggested that the PIP and objectives could be reviewed by email or MS Teams if he did not wish to discuss face to face. The claimant stated that he was reluctant to look at his objectives because he did not agree with the PIP. On 6 June 2023 Mr Vallance wrote to the Claimant with the outcome of the attendance management meeting on 1 June 2023. While the claimant was not issued with a written warning for unsatisfactory attendance he was encouraged to consider adjustments.

[76]On 15 June 2023 the MPP Process recommenced. On 21 June 2023 the claimant wrote to Mr Vallance requesting the removal of the MPP Process and a move to a different role. Mr Vallance replied on 23 June 2023 to confirm that it would continue subject to some adjustments including an extension of the review period and late start times, and that he would explore his request to move to a different role. Mr Vallance also offered to discuss the PIP again to clarify any areas that the claimant considered to be ambiguous, and to provide weekly feedback. The claimant continued to refuse to attend any meetings as he had done with Ms Stout. On 30 June 2023 the claimant confirmed to the Mr Vallance that his request to move to a different role was to stop the MPP Process stating, ‘Obviously this is not going to happen so no point discussing this any further,’

[77]On 3 August 2023, Mr Vallance provided the claimant with a detailed assessment of his performance and invited him to a formal stage 3 performance management meeting in line with the MPP Process. In turn, this led to the formal stage 3 (capability) meeting on 31 August 2023. Mr Vallance conducted a detailed assessment of the claimant’s performance during the review period and the claimant was given the opportunity to respond. While the men did discuss the possibility of the claimant being downgraded. The Claimant was resistant to this stating that this “would not be right” and that he would not consider being downgraded. This led to the claimant’s dismissal on 5 September, taking effect 6 September 2023 with Mr Vallance justifying the decision to dismiss in the following way at paragraph 123 of his witness statement: “I can see that Abdallah alleges in his ET1 that he was capable of carrying out the Core Behaviours used to justify the MPP Process (page 36, paragraph 48.1). This is incorrect. As covered in the meetings with Abdallah and lengthy emails detailed above, there was substantial evidence of poor performance dating back to late 2021. Abdallah was well aware of his underperformance, including feedback from me, Hannah and senior stakeholders. The limited ‘positive’ feedback Abdallah had obtained, which he refers to in his ET1 at page 36 paragraph 48.3, had been superficial (pages 144-150) and contradicts feedback that Hannah and I both obtained on the basis of anonymity. I think that this reflects that people can find it more difficult to provide constructive feedback in person and that more accurate feedback can be obtained when people can do it anonymously. Hannah and I both provided summaries of the feedback we obtained (pages 245-246 and 1984 – 1986). The feedback summarised in those documents supports the weaknesses we identified in Abdallah’s performance.” And further at paragraph 124: “I can see that Abdallah suggests in his ET1 that we acted unreasonably throughout the MPP process when satisfactorily completing objectives, giving different objectives (page 36 paragraph 48.4). He also alleges that we failed to set clear/specific objectives that he could work towards and be measured against, and that we set him up to fail (page 36, paragraph 48.6). These allegations are categorically false.”

[78]I accept this evidence in its entirety and in so doing, I find that the respondent had undertaken a detailed, thorough, reasonable and responsible process that had determined that the claimant was unsuitable for the role to which he had been appointed.

[79]The claimant was informed that he would not receive efficiency compensation under the Civil Service Compensation Scheme (“CSCS”), which is intended to compensate employees for loss of employment that is beyond their control and not to compensate for poor performance. This was a not an issue pursued at all before me but in any event I find this was a finding clearly open to Mr Vallance to make namely that the claimant was not eligible to apply under the terms of the scheme.

[80]On 19 September 2023 the claimant appealed the decision to dismiss him and not to award him any compensation under the CSCS. The appeal fell to Ms Howard to determine and which she rejected. Save for paragraph 14 of her statement, her evidence was unchallenged. In respect of her decision she says the following: “27. I did not agree with Mr Said’s position that he should not have been placed on a Performance Improvement Plan as the evidence I reviewed showed that there was stakeholder feedback which justified the improvement plan (pages 209 – 213, 215 – 216, 220 – 221, 232 – 242, 454 – 461, 465 – 483 and 535 – 537). I also felt it was clear that the assessment of his performance was not solely based on the opinion of one manager and there was no evidence to suggest the Performance Improvement Plan should have stopped because his manager changed. I pointed Mr Said to ‘Managing Poor Performance Advice’ available on the DHSC internet which confirms that where there is a change of line manager it is important there is a handover and that performance action being taken is not disrupted (pages 1930 - 1937). This was also clearly set out to Mr Said in several emails in February 2023 (page 759, 762). Therefore, I could not find any evidence that the PIP was unfair or that it was invoked because of his employer’s actions which harmed his health.28. I also disagreed that Mr Said’s managers were hostile towards him and nitpicking. I had reviewed written correspondence between Mr Said and his managers, an example of this is on pages 910 - 912 and pages 1235 – 1237 which detailed constructive feedback on his performance and were supportive of him. I felt all of Mr Said’s managers; James, Hannah and Ed were polite and professional with him.

29. I also felt his objectives were drafted in a consistent way with other Grade 7 objectives, and I could not see any evidence that his objectives were sent in a way to deliberately ensure he could not achieve them. I reviewed the Grade 7 success profiles and performance framework. I also thought about the Grade 7s I manage and although the roles are different, I felt the standard expected would be broadly consistent. There were also weekly feedback emails from James Vallance with lots of detail against both overarching objectives and specific tasks, so I felt there was appropriate training and coaching towards Mr Said.

30. I disagreed that DHSC had not put in place adjustments for Mr Said; both later starts of 10am and an extension of the performance review period were implemented. I was aware that Mr Said felt an adjustment would be to remove the Performance Improvement Plan, but I was in agreement with his manager that it is not reasonable where there is evidence of poor performance.

31. I also considered the decision not to award Mr Said efficiency compensation and rejected this point of appeal. I explained in my letter my reasoning and that my view was that it was not appropriate to award efficiency compensation. Although he experienced situational stress leading to anxiety through the performance process, I could see no evidence of any underlying health condition which predated concerns about his performance which were first highlighted by management in January 2022. Additionally, the guidance is clear that compensation may only be made where the employee is making efforts to comply with policies and co-operate with Occupational Health. Here, there was evidence that Mr Said had not fully engaged as he had refused to take short breaks and make us of additional wellbeing/pastoral support both of which were specifically recommended in the OH reports. Ultimately, the compensation is there to compensate employees for loss of employment that is beyond their control and not to compensate for poor performance when there is no underlying health condition.”

[81]I find Ms Howard’s investigation to have been detailed, balanced and reasonable and her decision in respect of the claimant’s appeal to be impeccable. I accept her evidence as set out in the paragraphs above in its entirety.

[82]Based upon these findings, I find that the claimant was dismissed on the grounds of capability on the basis that it was a reasonable dismissal of an employee holding the claimant’s position, but the dismissal was fair because the respondent acted reasonably in treating it a sufficient reason for dismissing the claimant, and that dismissal is a reasonable sanction in the circumstances is within the range of reasonable responses. Lastly, I find that the procedure adopted by the respondent was fair and reasonable. In reaching these findings, I find that the respondent had good cause to commence and continue the MPP process and acted reasonably, responsibly, proportionately and honestly throughout. There was evidence of ineffective performance by the claimant that justifies the imposition of the MPP. I find that the MPP generally is a fair, and effective mechanism utilised in this case to manage the claimant’s perceived poor performance.

[83]I expressly find that the MPP was not implemented or continued because the claimant raised grievances about Ms Stout or Mr Vallance, or because the claimant was not set clear objectives; on the contrary, I expressly find that the claimant had been set clear objectives, that he was supported throughout the performance management process, but that the claimant was incapable or unwilling to engage with the need to improve and the process generally. Further, I find that both Ms Stout and Mr Vallance took account of the claimant’s ill-health at relevant times and made adjustments. Any allegation of procedural impropriety or unfairness of the respondent’s part are not made out.

[84]Addressing the claimant’s contentions as to the respondent’s decision to dismiss him and not reinstate him, I find from the evidence presented to the tribunal principally provided by Ms Stout and Mr Vallance, together with Mr Jewell that the claimant was reasonably assessed as being incapable of carrying out the core behaviours relevant to his role.

[85]I disagree with the claimant and agree with Mr Harris’s submission that it is irrelevant for my consideration that he may have worked satisfactorily in a grade 7 role prior to commencing his employment with the respondent.

[86]I find that while claimant did receive positive feedback from colleagues about his performance, if find that the scope of those comments were limited and did not cover the full range of comments required in order to provide rounded, commercially viable feedback and therefore it was right for Ms Stout to seek further feedback in the way that she did. It was important to receive feedback from a relevant spectrum of peers and stakeholders.

[87]I am unable to reach a finding that the respondent acted unreasonably throughout the process by setting different objectives to the claimant to the ones that he expected to complete. I find that the claimant’s objectives hardly changed across the two years that he was subject to performance management and any changes that occurred were either minor or negligible and were requirements that reflected the business need of the Ministry and of ministers. It is my finding that the respondent acted reasonably throughout the process.

[88]I find that the claimant’s motivation for raising grievances about Ms Stout Vallance were entirely related to the claimant’s knowledge that the performance management processes would continue and were intended by the claimant to stand down those processes, an approach which was entirely misconceived in light of the reasonable findings reached by both managers of the claimant’s performance failings. I reject the allegation of conspiracy made against Ms Stout and Mr Jewell namely that they had commenced the MPP because he had raised an informal grievance to Mr Jewell around Ms Stout’s conduct. This allegation is wholly unsupported by evidence and was not pursued with any vigour before the tribunal.

[89]I repeat my finding that the respondent did set the claimant specific and clear objectives that he could work towards and that the claimant was aware of those objectives and how his performance will be evaluated. I reject the contention that the respondent set him up to fail.

[90]I find upon considering the evidence that the respondent was not able to redeploy the claimant as an alternative to dismissal. I accept Ms Stout’s evidence as to why the respondent would not countenance such a measure. I find that the claimant would not have accepted being moved to a lower grade as an alternative had this been open to him and I reach this finding based upon his response to Mr Vallance in this regard (see above).

[91]I find the respondent made adjustments in the MPP process with a view to avoiding the claimant’s dismissal and took account for the fact that the claimant’s health impacted his performance during the MPP. As to the allegation of bias, there is simply no evidence before the tribunal that relates to this allegation and therefore it must fail.

[92]Lastly, the allegation that the respondent had no intention of keeping the claimant in his current role because a role was advertised on 29 September 2023 advertising the claimant’s role as split into two is simply not made out on the facts and it is unchallenged by the claimant that these roles are advertised 23 days after the claimant’s dismissal.

[93]Accordingly, I find that the claim fails and is dismissed. Approved by: