Who would want to be an employer in this situation? You have two employees who can’t work together. You have tried everything you reasonably can to resolve the issues between them, but to no avail. You don’t really want to get rid of either of them, but given the situation you have no real choice – one of them must go. How do you decide which one?

This is fortunately a fairly unusual situation for employers, but nevertheless we have certainly come across it a few times over the years. In the recent case of Simmonds v Salisbury NHS Foundation Trust (2018) the Court of Appeal produced some useful guidance for employers facing this type of situation. Ms Simmonds started work for the Trust as a trainee, but after about a year her relationship with a senior colleague started to deteriorate. After about 2 years she went to see Occupational Health alleging that her colleague was bullying her and that this was affecting her health. The Trust did then take some steps to minimise their contact and enable them to work separately, but this clearly did not work, and eventually Ms Simmonds brought a grievance against her colleague alleging bullying and harassment. The grievance was upheld, and the senior colleague was then subject to disciplinary proceedings, which culminated in her being given a final warning. This was reduced to a formal warning on appeal.

Following the outcome of the disciplinary process, Ms Simmonds went off sick suffering from stress and depression, which she said was caused by her colleague’s bullying and harassment. The employer brought in an external investigator to try to find a way forward. However, their conclusions were that the working relationship between Ms Simmonds and her colleague had irretrievably broken down, that it was not feasible for them to perform their roles without their paths crossing and that it was not possible to separate them entirely.

The Trust then invited both the employees to try mediation, and both agreed. The senior colleague met with a mediator and agreed to do whatever it took to rebuild the relationship. Ms Simmonds refused to meet face to face with a mediator, so the mediation failed. The Trust then met with Ms Simmonds and told her that her choices were to either work with the senior colleague, redeploy to a different job or to resign. Ms Simmonds told the Trust that none of these options were acceptable to her, so the Trust dismissed her on the grounds of the irretrievable breakdown of her relationship with her colleague.

Ms Simmonds brought claims in the Employment Tribunal for unfair dismissal and disability discrimination. The Tribunal held that she was not disabled, and also rejected her claim of unfair dismissal. She appealed to the Employment Appeal Tribunal (EAT) which also rejected her claims. She then appealed to the Court of Appeal. She argued that she was the innocent party and it was her colleague who had bullied and harassed her. She argued that her colleague should have been dismissed, not her. She also argued that the Tribunal was wrong to hold that she was not disabled, and finally that her unqualified representative at the Tribunal had been incompetent.

The Court of Appeal can usually only overturn EAT decisions if there has been an error of law, and in this case the Court of Appeal found that there was no error of law and that therefore the appeal failed. The Court of Appeal found that although the senior employee had instigated the bullying, that conduct did not justify dismissal. Further, once the initial bullying had been addressed by the senior colleague being formally disciplined by the Trust, she had genuinely tried to mend the relationship, whereas Ms Simmonds had made it clear that she would not work with the senior colleague and had not made any effort at reconciliation. In those circumstances, the Trust had little option other than to dismiss. The Court of Appeal also noted that Ms Simmonds did not produce any medical evidence to support her claim that she was disabled, and also held that her representative allegedly being incompetent was not grounds for overturning the decision.

In these types of situations, each case will be different, with varying factors influencing the employer’s ultimate decision. In this case, had Ms Simmonds made more of an effort at reconciliation, the outcome might have been very different.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.