An employee was not unfairly dismissed following a breakdown in working relationships, even though no procedure was followed, in circumstances where a procedure would have served no useful purpose and might have worsened the situation.
The facts
Mrs Gallacher was a senior employee, employed by Abellio Scotrail Ltd, reporting to Ms Taggart. Over a period of time, the relationship between Mrs Gallacher and Ms Taggart deteriorated, with disagreements about salary, recruitment decisions, and an on-call rota. Meetings were held between them to consider the difficulties in the relationship, and Ms Taggart had looked for other opportunities for Mrs Gallacher within the Company, without success.
Abellio suffered a trading loss. This put Ms Taggart under pressure, as her directorate employed a significant part of the workforce. Mrs Gallacher’s role in the directorate was pivotal, and Ms Taggart considered that the breakdown in trust between her and Mrs Gallacher was disruptive to the directorate and to the business at a critical time. Ms Taggart did not consider that the situation was recoverable, and believed that, if the directorate was to meet key deliverables, an immediate change was needed. At a meeting that had been diarised as an appraisal meeting, Ms Taggart told Mrs Gallacher that she was to be dismissed because of the breakdown in their relationship and its impact on the business. Mrs Gallacher did not challenge the premise that there had been a breakdown in their relationship. She was not offered an internal appeal.
Mrs Gallacher brought claims in the employment tribunal for unfair dismissal and discrimination, both of which were not upheld. The discrimination claims (which are not considered in this article) were rejected. The employment tribunal also rejected the unfair dismissal claim. Mrs Gallacher appealed to the EAT.
The EAT upheld the employment tribunal’s decision. The judge commented that a failure to carry out any procedure would in many cases lead to the conclusion that the dismissal was outside the band of reasonable responses. However, in rare cases (not related to performance or conduct) it may be futile to follow any procedure, and the employer may dispense with a procedure. The employment tribunal had been entitled to find, in these particular circumstances, that a procedure would be futile, and that it might even make the situation worse.
What does this mean for employers?
Both the ET and EAT’s judgment make it clear that it will be a rare case where an employer can dismiss fairly without following any procedure. Of particular relevance here was the seniority of the two managers involved and the fact that Mrs Gallacher had shown no interest in rebuilding their relationship. Employers should also note that there was no dispute that the dismissal was because of the breakdown in working relationships, meaning that the ACAS Code was not applicable, nor would any internal procedures readily fit this situation. Had there been an argument about the reason for the dismissal and a suggestion that it was in fact performance or capability the decision may have been different.
In reality breakdowns in relationships between senior individuals are not that rare, and employers faced with similar situations should consider carefully on the particular facts whether it would genuinely be futile to follow any procedure, including mediation, before dismissing without following a fair procedure.
Where there is any context that might point towards discrimination or whistleblowing, employers should be particularly conscious of the heightened legal risks of dismissing without following a fair procedure.
