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Can an employer fairly dismiss an employee without following a process?

Senior Associate Solicitor, Jane Sinnamon

The Employment Appeal Tribunal (“EAT”) in the case of Gallacher v Abellio ScotRail has considered whether an employee was unfairly dismissed after their employer dismissed them without following any disciplinary process.

Background

The Claimant was a senior manager who worked for the Respondent as Head of Customer Experience and Standards. The Claimant’s working relationship with a senior colleague, a Ms Taggart to whom she reported, broke down during a time where the Respondent was facing difficult trading conditions.

The issues began when the Claimant sought a salary increase from Ms Taggart, but later learnt that she had been making negative comments about the Claimant. The Claimant was then required by Ms Taggart to participate in an on-call rota, which the Claimant argued she did not have the technical knowledge or experience for. There was another dispute between the Claimant and Ms Taggart about recruitment for a candidate as part of a restructuring exercise and then a further confrontation following a one to one meeting between the two, which the Claimant argued that Ms Taggart had not made a full record of.

The Respondent posted a trading loss in March 2017, which placed Ms Taggart under significant pressure, and it was decided that due to the circumstances, her direct reports needed to be reliable. At a meeting in April 2017, the Claimant was informed that she would be dismissed at her annual appraisal meeting because of an “irretrievable breakdown in the working relationship” with Ms Taggart. The Claimant subsequently brought a claim to the Employment Tribunal for unfair dismissal and disability discrimination, although we will focus solely on the unfair dismissal aspect of the claim.

The Law

S.98(4) of the Employment Rights Act 1996 states that when assessing the reasonableness of an employer’s decision to dismiss, it depends on whether in the circumstances the employer acted reasonably in treating the reason as a sufficient reason for dismissing the employee and in accordance with equity and the substantial merits of the case.

Over time this has been interpreted by the courts as including a requirement that an employer adopt a fair procedure before taking the decision to dismiss. For example, with regard to misconduct, a fair procedure translates into the fair, transparent and consistent application of a disciplinary procedure, where the employee is informed of the case against them, has the opportunity to present their side of events at a hearing, and has the right of appeal against dismissal.

Decision

The Employment Tribunal found that the Claimant’s dismissal was not unfair and dismissed her claim. The Claimant appealed to the Employment Appeal Tribunal (“EAT”). The EAT dismissed the appeal. In agreeing with the Tribunal, the EAT concluded that this was one of those rare cases where it was open to the Tribunal to conclude that dismissal without any procedure was within the band of reasonable responses. The EAT concluded that “the Tribunal found that any procedures at this time would not only have served no purpose but would in fact have worsened the situation.”

Comment

This is an unusual example of a situation where an employee has been fairly dismissed, even where there has been a failure to follow any disciplinary procedure. Employers should generally not adopt this approach, as it is an exception rather than the rule and will very much depend on the facts. If you are in doubt as to whether a procedure should be followed or not when dealing with a difficult situation involving an employee, take advice from an employment lawyer to minimise risk.

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