Employment and Immigration Law Update – A fair dismissal with no procedure?

The Employment Appeal Tribunal (EAT) has ruled on whether an employer had unfairly dismissed a senior employee when it followed no procedure and without offering a right of appeal.

Gallacher v Abellio Scotrail Limited [2020], UKEATS/0027/19

Facts

The claimant, a senior manager for the respondent, was dismissed by her line manager at an appraisal meeting in April 2017 following a breakdown in trust and confidence between them. Her role was regarded as pivotal at a critical time for the business and her line manager considered that the situation was irrecoverable. Having discussed the situation in advance with the HR Director, who did not consider the matter to be one of conduct or performance management, where following a process would help manage the situation, the decision was made to terminate her employment. She was not offered the right of appeal and was paid in lieu of her notice entitlement.

The claimant brought claims for unfair dismissal, disability, sex and age discrimination. The respondent denied that it had knowledge of the disability relied upon by the claimant, which were symptoms connected with the menopause and depression. An employment tribunal rejected the claimant’s discrimination claims, and found the dismissal to be fair for some other substantial reason due to a lack of trust and confidence between two employees at senior level. It accepted the respondent’s submission that an irretrievable breakdown in trust and confidence, particularly between two senior managers at a critical time, did not naturally fit into any internal policy.

The tribunal did not consider that any procedure would serve any useful purpose and if anything, would have worsened the situation. It found no evidence that the claimant was interested in retrieving her relationship with her line manager, and it considered any appeal would have been “going through the motions”. In the particular circumstances of this case, the decision to dismiss was substantially and procedurally fair.

The claimant appealed to the EAT.

EAT decision

The EAT dismissed the appeal, upholding the tribunals decision. It noted that in rare circumstances, such as this one, procedures may be dispensed with because they are reasonably considered by the employer to be futile.

On both sides, the working relationship had broken down and there is no rule of law that the absence of any procedure necessarily renders a dismissal unfair. However, such dismissals will be subject to extra caution on the part of the tribunal before being considered to fall within the band
of reasonable responses.

Consequences

The circumstances of this case are clearly rare, and in the majority of cases an employer would be expected to follow at least a minimum procedure before making the decision to dismiss. It was significant here that the employee concerned was senior, showed no inclination to retrieve the situation and that the business was at a particularly critical time.

The decision does support an argument that in cases where there is an irretrievable breakdown in trust and confidence, it might be appropriate to dismiss without following any procedure. Such a strategy is not without risk, however, and we would caution employers to seek advice before adopting this approach to a dismissal.

These articles are from the August 2020 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.