A recent case has found that an employee can be fairly dismissed without prior procedure being followed, only in unusual circumstances.
In order to successfully defend a claim for unfair dismissal, an employer must generally i) establish the reason for the dismissal and ii) show that it followed a fair and reasonable process before reaching the decision to dismiss.
The Employment Rights Act 1996 sets out the potentially fair reasons by which an employer can lawfully dismiss an employee. In addition, case law and the Acas Code of Practice on disciplinary and grievance procedures provide guidance on how to meet the ‘fair and reasonable’ test. However, there are circumstances where an employee can be fairly dismissed without any procedure being followed at all, as shown in the recent Employment Appeal Tribunal (EAT) decision in the case of Gallacher v Abellio Scotrail.
Background to the case
Mrs Gallacher commenced work at Abellio Sctorail (‘AS’) in 2007 and, at the time of her dismissal, was a senior manager working as Head of Customer Experience and Standards. From 2011, she reported to Ms Taggart, with whom she initially had a good working relationship. However, the relationship began to sour following the rejection of Mrs Gallacher’s request for a pay rise, and from 2014, Ms Taggart started to receive reports that Mrs Gallacher was making negative comments about her. As time progressed, Mrs Gallacher became less and less cooperative leading Ms Taggart to conclude that Mrs Gallacher was determined to get her own way.
Mrs Gallacher went on sick leave between November 2016 and January 2017. She was invited to a return to work meeting in January 2017 to discuss a phased return to work and a wide range of matters including business challenges and the pressures of work. Ms Taggart sent an email summary of their discussion to Mrs Gallacher and was surprised to receive a response disputing the accuracy of the email and making a number of substantial changes to its content. A further meeting was held in March at which it became clear to Ms Taggart that Mrs Gallacher blamed her for the deterioration in their working relationship.
Around this time, there were complaints about Mrs Gallacher’s performance and AB posted a trading loss which placed Ms Taggart under a great deal of personal pressure. She felt she needed to be able to trust her staff to support her in delivering the Customer Experience required at such a critical time for AB and that she could not trust Mrs Gallacher due to the breakdown in their working relationship.
Having sought advice from HR, Ms Taggart dismissed Mrs Gallacher without any process on the basis of an irretrievable breakdown in the relationship of trust and confidence.
As a result Mrs Gallacher brought a claim for unfair dismissal.
The Employment Tribunal decision
The Employment Tribunal (ET) found that the dismissal was fair. It was within the band of reasonable responses open to the employer, as there had been an irretrievable breakdown in trust and confidence between Mrs Gallacher and Ms Taggart. Consequently, a formal procedure wouldn’t have served any purpose and in fact could have made matters worse. Mrs Gallacher appealed to the EAT.
The Employment Appeals Tribunal decision
The EAT upheld the ET’s decision, dismissing Mrs Gallachers appeal. Usually, AB’s failure to follow any procedure prior to the dismissal would have rendered the dismissal unfair. However, the EAT held that there are rare cases where procedures may not be followed because they would be futile.
In the case at hand, the two employees were both senior managers who needed to be able to work together, especially during such a crucial time for the business. Mrs Gallacher had shown no interest in retrieving the relationship and was unable to put things behind her. She did not raise a grievance and did not contest that the working relationship had broken down. As a result it was accepted by the tribunal that any attempt to follow a procedure would have been futile and would not have altered the decision to dismiss.
These are exceptional circumstances and the EAT stressed that it would be “an unusual and rare case where an employer would be acting within the band of reasonable response” by dismissing an employee without following a fair and reasonable process. It was purely on the specific facts of this case that the dismissal was found to be lawful. This case should be treated as the exception rather than the rule, and employers should always meet with the employee to discuss the situation before dismissing them.
For more information on the contents of this article, please contact Debbie Sadler on 01494478671 or at firstname.lastname@example.org