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Dismissal without procedure – fair or unfair?
Decisions in employment law are not always straightforward and can involve a nuanced response, as the Employment Appeal Tribunal (EAT) recently demonstrated.
Picture this – you work in Human Resources (HR) at a rail company and are presented with the following scenario concerning a possible dismissal:
- A long serving, and senior employee (G), initially had a good relationship with her line manager (T). However, relations have deteriorated over time, initially following a request made by G for a salary increase. Although T assured G that she had recommended a salary increase to HR, T got the impression that G did not trust her to properly represent her position.
- T subsequently added G to the on-call rota, after G had objected to her inclusion. T had explained that on-call work was a non-negotiable part of G’s role.
- Internal restructuring created three new roles, all reporting to G. T and G disagreed over one of the candidates.
- G was absent for seven weeks, on both sick leave and annual leave.
- G had a meeting with T to discuss several issues, including likely business challenges and pressures of work ahead. A phased return was agreed. T sent G a summary of the meeting. G responded, disputing the completeness of the summary and setting out substantial amendments.
- Further disagreement over recruitment was discussed at a one to one meeting. In the same meeting, G and T discussed difficulties in their relationship. T felt that when she requested that G did something she did not want to do, they could not discuss the matter. Concurrently, those reporting to G had expressed concerns about her leadership.
- Your company recently posted a trading loss. T comes to visit you, explaining that the breakdown in trust between her and G disrupts the business at this critical time. She feels the situation is irrecoverable.
Would dismissing G at her upcoming appraisal meeting, in the absence of any procedure or right to appeal, be an unfair dismissal?
You may find the answer surprising.
The EAT recently addressed this issue in Gallacher v Abellio Scotrail Ltd. Noting that following no procedure “prior to dismissal would in many cases give rise to the conclusion that the dismissal was outside the band of reasonable responses and unfair”, it found that this was an exceptional case and that dismissal, despite the absence of any formal process, was not unfair. There was enough evidence to conclude that the breakdown of relations was irretrievable, and that following a procedure would not only fail to serve any useful purpose, but would actually worsen the situation.
This case illustrates the perhaps unexpected extent of the range of reasonable responses under which a fair decision to dismiss would fall. Nonetheless, employers would be well advised to note that this was a highly unusual case which should not change their approach to dismissal.