Is it possible to fairly dismiss an employee without following any process where there has been an irretrievable breakdown in the working relationship?
Yes (sometimes), according to the EAT in Gallacher v Abellio Scotrail Ltd UKEATS/0027/19.
Background
In order to fairly dismiss an employee an employer must have a fair reason for dismissal. There are five potentially fair reasons:
- Conduct;
- Capability;
- Redundancy;
- Statutory illegality; and
- Some other substantial reason.
Some other substantial reason (“SOSR”) is essentially a catch-all provision which enables an employer to fairly dismiss someone for a reason that falls outside the first four reasons outlined above but is nonetheless sufficient to justify dismissal. This involves demonstrating that an employer had a substantial reason, that is, it was not an insignificant or frivolous reason, and that the reason justified dismissing the employee.
If an employer can show that the dismissal was for one of the potentially fair reasons, the tribunal will then consider whether it has followed a fair procedure, and whether it was reasonable for them to dismiss for one of those reasons, taking into account all the circumstances including the size and administrative resources of the employer.
Facts of the case
The Claimant had worked for the Respondent (and its predecessor) since December 2007. Initially there was a good working relationship between the Claimant and her Manager, with both of them holding senior roles within the business. The relationship began to sour in November 2014 when the Claimant sought a salary increase which her Manager refused. Sometime later an issue arose concerning the Claimant’s work schedule and she made it clear to her Manager that she was looking for an alternative role.
There followed a further discussion in March 2017 when the Claimant and her Manager discussed the difficulties in their working relationship. Despite recognising the problems the Claimant showed no signs that she wished to repair the relationship.
In April 2017, at her annual appraisal meeting, the Claimant was informed of the Respondent’s decision to dismiss her. The Respondent did not follow any process and relied on the irretrievable breakdown in its working relationship with the Claimant.
The Claimant issued proceedings in the Employment Tribunal (“ET”) for unfair dismissal and discrimination.
Decision of the ET and Employment Appeal Tribunal (“EAT”)
The ET rejected both of her claims. In its view, her dismissal for SOSR, namely the breakdown in her relationship with her Manager, which was effected without any procedure, was not unfair. The Claimant appealed to the EAT.
The EAT upheld the ET’s decision. The EAT acknowledged that in many cases, failure to follow any procedure leading to dismissal would render any decision to dismiss unfair. However, in rare cases (such as this) procedures may be dispensed with where they are reasonably considered by the employer to be futile in the circumstances. In this situation, the Claimant had shown no interest in trying to repair her relationship with her Manager and her ability to work effectively with this person was considered crucial by the Respondent. In terms of the effect of any procedure on the outcome, the EAT found that it would not have served any useful purpose and in fact may even have worsened the situation.
Comment
This case essentially boiled down to a personality clash and highlights the importance of both sides working together to repair any breakdown in the working relationship. Here, the Claimant’s failure to engage in any attempts to rescue the relationship lent weight to the Respondent’s decision to dismiss.
It comes with a word of warning however as employers should not see this case as a green light to dispense with formal processes when terminating employment. Both the ET and the EAT made it abundantly clear that it is rare for an employer to be able to justify dismissing without following any procedure.
