Is it ever 'fair' to terminate employment without following a procedure?

The answer is that it sometimes can be according to the Employment Appeal Tribunal (EAT) in the recent case of Gallacher -v- Abellio Scotrail Ltd UKEATS/0027/19 (04 February 2020) The EAT decided that a dismissal was fair in spite of the fact that a formal procedure had not been adopted.

The employer had decided to dismiss the employment of the Claimant, who was employed as its Head of Customer Delivery and Standards, which was a senior role. Unfortunately, her working relationship had broken down with her line manager. When the Company went through a difficult period, which was described as “business-critical” by the Employment Tribunal, a decision was reached to terminate the Claimant’s employment on the grounds that the deterioration of her relationship with her line manager was an obstacle to meeting the objectives of the business.

The Employment Tribunal found that the dismissal was fair on the basis that:

“neither individual had trust and confidence in the other; that the Claimant had been “truculent” towards Ms Taggart in relation to the recruitment issue; that the Claimant had been unable to put matters behind her and move on; that longstanding issues between them remained unresolved even at March 2017; and that Ms Taggart genuinely believed that there was an irretrievable breakdown in relations”.

This was deemed to be some other substantial reason, which is a category of fair dismissals recognised by Tribunals where the employer has a substantial reason to justify dismissal but it does not fall into one of the traditional categories of conduct, capability or redundancy.

The Employment Tribunal commented that it was very unusual for there to be a finding of unfair dismissal where a formal procedure had not been followed. The Tribunal found that the Acas code did not apply as this was not a dismissal on the grounds of conduct or capability. Having decided that there had been an irretrievable breakdown in relations, the Tribunal decided that a procedure would not have made any difference to the outcome but that it could even have made things worse. As such the decision to not follow a procedure had not rendered the dismissal unfair.

The EAT agreed that it is unusual for a dismissal to be fair where no procedure has been followed. In upholding the Tribunal’s decision the EAT emphasised that this was a breakdown in relations between two senior personnel during a business-critical period.

In recent years some Employment Tribunals have been reluctant to find that a breakdown in trust and confidence can be a fair reason for dismissal on the basis that it is sometimes used where there is not sufficient evidence of misconduct. This case shows that it can be a fair reason for dismissal in certain circumstances.

This case also shows that a decision to not follow a formal procedure will not automatically lead to a finding of unfair dismissal where there has been a breakdown in personal relationships if it was reasonable to not do so in the circumstances. Nonetheless, employers should tread carefully in these sorts of cases as this case is unusual on its facts, and employers are likely to face an uphill struggle to persuade a Tribunal that a dismissal is fair where a formal procedure has not been followed.

Please note, the information included in this update is correct at the date of publishing.