In the recent Employment Appeal Tribunal (EAT) case of Gallacher v Abellio Scotrail Limited an earlier employment tribunal judgement that the dismissal of an employee following an irretrievable breakdown in working relations was fair was upheld, despite the fact that the employer had failed to follow any process.
In this case, a senior employee, who had a deteriorating relationship with her manager over an extended period, was dismissed after her manager felt that trust and confidence had broken down. The breakdown in relations occurred during a critical time for the employer, and the employee did not challenge the fact that such a breakdown had occurred. Both the employee and the manager had tried to locate alternative employment within the organisation, but to no avail and the manager concluded that the only way forward would be the employee’s departure. Prior to the dismissal, there was no process followed and there was no opportunity to appeal the decision. There was no suggestion that the employee had behaved in a way that could result in disciplinary action or that there were any problems with her performance.
The employee claimed that the dismissal was unfair, relying on the fact that the employer had failed to follow a reasonable and fair process. The Tribunal found that the dismissal was due to the breakdown in relations and as such was for some other substantial reason. In the specific circumstances of this case, it was held that the failure to follow process did not render the dismissal unfair, following a process would have been futile and may actually have made the situation worse. It therefore followed that the decision to dismiss was within the band of reasonable responses and the dismissal was fair.
Where employers fail to follow a fair procedure, prior to dismissing an employee, this will often lead to an unfair dismissal as such procedures are regarded as fundamental to the principals of natural justice and reasonableness. However, there is no general rule of law that a failure to follow a process will result in an unfair dismissal, the test in all cases is whether, in the circumstances, the decision to dismiss was within the band of reasonable responses open to the employer.
It should be noted that such cases will be the exception and employers should be very cautious and take advice before dismissing employees without following a fair process. This case had very specific facts and the judgement is clear that it will only be deemed reasonable to dispense with such procedures in circumstances where they would be futile. It is usually a far safer approach to follow due process if at all possible.
For advice in relation to employment matters including redundancy, disciplinary procedures and dismissal please contact the Lawspeed employment team by emailing [email protected] or calling 01273 236236
Adrian, a highly experienced lawyer, founded Lawspeed in 1997. He is responsible for developing our extensive portfolio of products and services, including the widely used Lawspeed contract templates. Adrian is an expert on “recruitment law” and specialises in contracts, regulatory compliance, employment status and dispute handling. He is chair of the trade body the Association of Recruitment Consultancies, the only lawyer lead recruitment trade body in the UK. Adrian and his co-director Ravi devised Standards in Recruitment as a vehicle for helping drive up standards and compliance in the industry.
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