16 September 2020
Law at Work - September 2020 – 3 of 5 Insights
Where an employer has a fair reason to dismiss, it must also follow a fair procedure, to avoid a dismissal being unfair. In this case the employer carried out a dismissal for "some other substantial reason" without following any procedure. However, the EAT held that it was not unfair where the reason for the dismissal was a breakdown of trust and confidence between the parties.
Relations broke down between two Abellio Scotrail senior employees who worked in the Customer Experience Directorate, the claimant and her line manager (LM) who worked in its Customer Experience Directorate after a series of disagreements concerning her pay and working patterns, including on-call work and recruitment decisions. They both acknowledged the difficulties which coincided with a period of financial pressure for Abellio. The claimant wanted to move on, but neither she nor the LM could find another internal role for her. The LM concluded that there was an irretrievable breakdown in trust with the claimant which could hinder the business response during the crisis. She consulted the Head of HR, who aware of the circumstances, did not consider that the matter was one of conduct or performance management where following a process would help manage the situation.
At her pre-arranged annual appraisal meeting the claimant was informed of the decision to dismiss without any procedure being followed or a right of appeal provided. She was paid in lieu of notice. The reason given to her was that her dismissal was because the relationship with her LM had broken down and there was a lack of trust. The claimant did not dispute that her relationship with the LM had broken down.
She brought a claim in the employment tribunal (ET) that her dismissal was unfair and amounted to discrimination in connection with her disability. The disability, which was not in dispute, was symptoms suffered by the claimant in connection with the menopause and depression. However the ET concluded that Abellio did not know and could not reasonably have been expected to know that the claimant had a disability and that the reason for dismissal was for some other substantial reason, which was a lack of trust and confidence between two employees at senior level which was a barrier to delivering the objectives of the business.
It was accepted that there was no formal procedure before dismissing the claimant, which would often result in an ET concluding that the dismissal was unfair. However, a tribunal cannot substitute its own decision for that of the employer. It acknowledged that the ACAS Code of Practice did not apply (as this only applies to disciplinary situations including misconduct and/or poor performance). It then considered the reasonableness of not following any process in this case, noting that the LM had reflected on and reached the decision following discussion with the HR Director and Finance Director. The ET concluded that a procedure would not have served any useful purpose and if anything, it would have worsened the situation so that "in the particular circumstances of this case the decision to dismiss was substantially and procedurally fair."
The claimant appealed to the EAT which upheld the ET's finding that a dismissal for "some other substantial reason", effected by an employer without following any procedure, was not unfair. It acknowledged that an employer may dispense with following procedures where they could reasonably be futile.
It is very rare that a fair procedure is not required for a fair dismissal, and both the ET and EAT flagged that this case was based on specific circumstances. However, where employers are managing an exit from the business for senior personnel, following a breakdown of trust and confidence, and where the employee’s performance or conduct are not at issue, this is useful case to refer to. However, employers would not be advised to rely on such an approach when a more junior employee is involved. From a risk management perspective, following a process is the safest option.
by Helen Farr
Gallacher v Abellio Scotrail Ltd
Kelly v PGA European Tour
by multiple authors