Wed 01 May 2024

"Unusual and rare" - the case of the fair dismissal that didn't follow procedure

This interesting case concerns a dismissed employee who was neither issued with a warning nor offered an appeal by his employer.

I can say with a fair degree of certainty that you will never hear a lawyer reassuring their client that a failure to follow their usual dismissal procedure won't be a problem if they have to defend an unfair dismissal claim.  Cases where following a proper procedure would have been so futile as to not impact on the fairness of a dismissal are the exceptions that prove the rule. The case of Matthews v CGI IT UK LTD is of interest, not because it is ground breaking or creates any new legal precedent, but simply because it is one of those rare exceptions.

This case needs to be differentiated from those where a dismissal is found to be unfair, but compensation is reduced to nil because the dismissal would have occurred in any case (known as a "Polkey deduction"). Here the dismissal was found to be fair, despite the failure to follow usual procedure, and compensation was therefore never an issue.  


The key facts here are that the claimant was dismissed without any written warning and he was not offered an appeal. The reason for the dismissal was held to be an irretrievable breakdown of the relationship between the claimant and his employer. The claimant's relationship with his employer had been fine until early 2020.  He came down with Covid early in the pandemic and that subsequently developed into long Covid and resulted in a long-term absence.  The employer carried out a (genuine) redundancy procedure while he was absent which the claimant did not engage with on the basis of his health.  After a colleague was made redundant the claimant raised a grievance against his manager.  The grievance did not result in action against the manager who the claimant had accused of undermining and scapegoating him, those allegations not having been upheld.  Attempts were made to re-start the redundancy process but were eventually abandoned due to the deteriorating relationship.

The employer then made significant attempts to find a role that the claimant could return to from his long-term sick leave.  The claimant remained confrontational, threatening legal action, more grievances and either refusing or placing unacceptable conditions on the roles he was offered. He refused "coaching" to try to repair his relationship with his manager and stated his trust in the employer was hitting an all-time low.  He was eventually given a deadline for confirming which role he wished to return to (which he did not comply with) but claimed both options were untenable. When the employer's President of Operations subsequently decided which role would be offered to the claimant, he claimed it was a demotion and constructive dismissal.  At that point, the President of Operations concluded that the relationship with the claimant had broken down irretrievably and the only remaining option was termination.  He was paid in lieu and not offered an appeal. 

Employment tribunal 

The claimant brought proceedings for unfair dismissal, automatic unfair dismissal and detriment for making a protected disclosure, victimisation and failure to make reasonable adjustments. The employment tribunal found the sole reason for the dismissal was the irretrievable breakdown of the relationship. They also found that the employer had repeatedly tried to find a solution but the claimant's refusal to accept one meant there was no alternative left other than dismissal. The tribunal also concluded that had the employer issued a warning, it would have escalated the situation, and that mediation was not an option due to the claimant's animosity to his line manager. As the decision to dismiss was made by the claimant's most senior manager, it was unlikely an appeal could have repaired the relationship. All the claims were dismissed.

Employment Appeal Tribunal ("EAT")

The claimant appealed on multiple grounds but was unsuccessful. The EAT upheld the judgment of the tribunal, this was one of those rare cases where following the usual procedural steps would have made no difference to the outcome.   


This case is, of course, not a green light for employers to dismiss without following procedures. The elements that contributed to this outcome were the employer's genuine belief that pursing usual procedures would have been futile and, of course, the claimant's conduct. The significant attempts made by the employer to enable the claimant to return demonstrated their efforts to repair the damaged relationship, but they continued to be faced with a combative employee.  It is a reminder that, in these somewhat extreme circumstances, a fair dismissal is possible, but the EAT were very clear that this was an "unusual and rare case".  

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