Dismissal was fair even with no procedure whatsoever

28 August 2020

Over the years we have heard many employer clients complain that the rules relating to unfair dismissal are all about procedure, and very little to do with fairness.  We do not necessarily always agree with that, but it is certainly true that in the vast majority of cases, if an employer does not follow a fair procedure, the dismissal is very likely to be ruled unfair.

An exception to that was illustrated in the recent Employment Appeal Tribunal (EAT) decision of Gallacher v Abellio Scotrail.

In this case Mrs Gallacher was employed in a senior management role within the company as Head of Customer Experience and Standards.  She reported to Ms Taggart and there had been considerable differences between the two for some time.  Matters came to a head during an appraisal at a critical time for the company, where Mrs Gallacher complained about the pay structure, on call work and the appointment of staff to her team whilst she had been off sick.  Ms Taggart felt that she needed help from her senior managers who needed to be supportive of the company’s policies, and it was clear to her that this was not the case with Mrs Gallacher.  After consulting with the company’s HR department she decided to terminate Mrs Gallacher’s employment and not give her any right of appeal.  Mrs Gallacher brought a claim of unfair dismissal.

The Employment Tribunal found that both parties acknowledged that there was an irretrievable breakdown in the relationship between Mrs Gallacher and Ms Taggart.  In those particular circumstances the Tribunal held that the dismissal fell within the band of reasonable responses open to the employer, and thus held that the dismissal was fair.  The Tribunal went so far as to say that in its view trying to follow a procedure would have actually made the situation worse.  Mrs Gallacher appealed to the EAT.

The EAT refused to overturn the Tribunal’s decision.  They held that there was nothing to say that failure by an employer to follow any procedure before dismissing an employee would necessarily render the dismissal unfair.  However, they did say that this was highly unusual case where both parties acknowledged the irretrievable breakdown in the relationship between them and that cases where a failure to follow a procedure being found to be fair will be rare.  They also said that such cases will be subject to extra scrutiny by the Tribunals.

As you would expect, this case should be regarded as the exception rather than the rule. We recommend that, at the very least, before dismissing for irretrievable breakdown in the employment relationship the employer should meet with the employee to talk to them about the situation. However, there will be very rare occasions when a failure to follow any process will not render the dismissal unfair. This case also illustrates the fact that the worse the employee behaves, the easier it is going to be for the employer to make this argument.