Unfair Dismissal – EAT considers whether a dismissal without following any procedure was fair- Gallacher v Abellio Scotrail

An Employment Appeals Tribunal (‘EAT’) in Scotland has held that the dismissal of a Claimant arising as a result of breakdown in relations, in which no procedure was followed or any right of appeal was offered, was not unfair.

Facts

The Claimant was dismissed in May 2017 following a breakdown in the relationship with her manager. This significant deterioration arose from a number of longstanding issues that occurred in the course of the Claimant’s employment including in relation to the Claimant’s salary, being asked to be on-call and comments made by the Claimant about her manager. At a critical time for the business, the Claimant’s manager felt that the breakdown in trust between her and the Claimant was not recoverable and with the support of HR, decided to dismiss the Claimant. No formal procedure was followed and the Claimant was not offered a right of appeal. The Claimant thereafter brought a claim for unfair dismissal and disability discrimination.

The Employment Tribunal (‘ET’) found that the reason for the dismissal was some other substantial reason, namely the irretrievable lack of trust and confidence between two senior managers which was a barrier to delivering the objectives of the business. It noted that the situation did not naturally fit into any internal policy especially when no alternative roles were available within the business and that there was no evidence that at the time, the Claimant was interested in retrieving the relationship. It held that any appeal “would have been going through the motions” and that the dismissal was fair. The Claimant appealed.

Decision

The EAT agreed with the ET that the dismissal was fair. It noted that the fact no procedure was followed would in many cases give raise to the conclusion that the dismissal was outside of the band of reasonable responses and be unfair. However, it agreed with the ET’s consideration that following any procedure would not serve a useful purpose in this case and highlighted their conclusion that if anything, it would have worsened the situation. It held that they were entitled to reach this conclusion in light of the unusual circumstances of this case.

It held that although it is well-established that formal procedures should be followed before dismissing, it recognised that there may be cases, albeit rare, “where the procedures may be dispensed with because they are reasonably considered by the employer to be futile in the circumstances”.  It was further noted by the EAT that “dismissals without following any procedures will always be subject to extra caution on the part of the Tribunal before being considered to fall within the band of reasonable responses.” It was concluded that the tribunal did exercise such caution.

Implications for employers

As recognised by the EAT, this was a case involving two senior managers who needed to be able to work together effectively in order to deliver what the business required at a critical juncture. The decision is therefore very fact specific. In the majority of cases, formal procedure should be followed by employers before deciding to dismiss an employee. Failure to do so can lead to potential claims for unfair dismissal and if such a claim is successful, can also lead to an increase in the amount of compensation awarded to the Claimant.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

The Legal 500 - The Clients Guide to Law Firms

UK Chambers logo

Best Companies - One to watch logo

Cyber Essentials Certification Logo