Fri 28 Aug 2020

Procedure not always pre-requisite for fair dismissal

Employment law nearly always requires a formal procedure to be carried out before a dismissal takes place, but there are exceptions to every rule.

Sometimes the level of frustration caused by an employee's behaviour can tempt an employer to by-pass formal procedures and dismiss, particularly where the employee holds a senior position and is particularly disruptive.  Usually this course of action is strongly advised against but the case of Gallacher v Abellio Scotrail Limited is a rare exception.

Involving a senior ScotRail employee, the case garnered considerable press coverage at the time of the employment tribunal hearing.  Ms Gallacher was head of customer experience and standards for Abellio Scotrail at the time of her dismissal in 2017. She had reported to Ms Taggart for 5 years by the time of her dismissal.  During this period issues around pay requests, participation in an on-call rota and recruitment of new staff led to a serious deterioration in the working relationship.  Latterly concerns were raised by Ms Gallacher's direct reports about her ability to do her job.  Two meetings took place where both business issues and the working relationship were discussed.  The business was performing poorly at this time and Ms Taggart felt the breakdown in the relationship with Ms Gallacher was damaging to her department and the business as a whole.  She concluded it was necessary to exit Ms Gallacher, who was told of this decision at her annual appraisal in April 2017.

The reason for dismissal was not conduct or performance, but the irretrievable breakdown in the relationship between Ms Gallacher and Ms Taggart.  No appeal was offered, but nor did Ms Gallacher raise a grievance.  She acknowledged the reason for the dismissal in an email, and did not dispute the relationship breakdown.  She was paid in lieu of notice.  She subsequently raised a claim for unfair dismissal and sex, age and disability discrimination.

The employment tribunal found the dismissal, which was for "some other substantial reason", to be fair despite the lack of any procedure.  The reason for the dismissal was a lack of trust and confidence between two employees at a senior level which was a barrier to delivering the objectives of the business.  With regard to the failure to follow any procedure, having heard evidence from the parties the tribunal concluded that had a procedure been followed it would not have served any useful purpose and if anything would have worsened the situation.  There were no alternative roles within the business and the tribunal concluded that Ms Gallacher had not been interested in retrieving her relationship with Ms Taggart.  In the particular circumstances, the dismissal was both substantively and procedurally fair.  The discrimination claims were also dismissed.

On appeal the EAT upheld the judgement.  This was one of the rare occasions when following any procedure would have been futile and, as such, the dismissal without any procedure was within the range of reasonable responses.  The EAT were though at pains to point out that following no procedure would in many cases give rise to a finding of unfair dismissal.  Key elements here were (1) the fact that the employee involved was senior, (2) that the business was being detrimentally impacted upon at a time when it was making losses, (3) that Ms Gallacher had already tried and failed to obtain alternative employment within the business and (4) that she acknowledged the relationship breakdown but was not inclined to retrieve the situation. 

For employers who do feel that it is necessary to exit a senior employee quickly then there are lower risk (but not necessary no risk) strategies to the one that was utilised in this case.  A without prejudice or protected conversation may be an option with a view to agreeing the terms of a settlement agreement.  While this would usually involve a financial package this may still be a preferable option to taking an employee whose continued presence is damaging to the business through a more lengthy procedure - all the more so if there is a concern about whether a subsequent dismissal would stand up to scrutiny at an employment tribunal. 

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