Dismissing Senior Employees on Capability Grounds – Is a comprehensive procedure always necessary?

Is there ever a reason for not following due process when dismissing?

There have been cases where the employee was so senior, and the capability issue so blatant, that it was held following ACAS guidelines, although desirable, was not strictly necessary.

This situation is very much the exception rather than the rule, as the outcome in Zen Internet v Stobart [2025] EAT 153 highlights.  Mr Stobart was dismissed from his role as CEO on capability grounds. No process was followed. His dismissal was found to be procedurally unfair. When considering the ‘Polkey adjustment’, the Employment Tribunal concluded that dismissal would have occurred in any event within around two months from the date notice had been given.  This was to allow for meetings and appeals etc.

The employer appealed to the EAT on grounds that the case was so egregious that any process would have been futile but the EAT dismissed the appeal. This was not one of those rare cases (for example Polkey v A E Dayton) where seniority of position meant that no capability procedure needed to be followed.

When considering how much longer a fair process would have taken, the EAT said that the starting point of the fair process generally commences before notice is given (namely the date when capability concerns are first raised).  From this point, the Tribunal can assess when dismissal, following a fair process, might reasonably have occurred.