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Employment Law Cases
Dismissal and absence of procedure
Gallacher v Abellio Scotrail Ltd
Where there has been an irretrievable breakdown in a working relationship, a complete lack of any procedure may not render a subsequent dismissal unfair.
Ms Gallacher was a senior manager at Abellio Scotrail (AS) working as Head of Customer Experience and Standards. Her direct manager was Ms Taggart. Ms Gallacher was off work sick for a period between November 2016 and January 2017. Ms Taggart said that the pair’s relationship had deteriorated, at a critical time for the business, due to issues over pay, on-call work and the appointment of staff within Ms Gallacher’s team. Issues came to a head during a performance review meeting at which Ms Gallacher was dismissed. There had been no warnings or other procedure followed or right of appeal given. Among the claims which Ms Gallacher brought was one for unfair dismissal. The tribunal found that her dismissal was within the band of reasonable responses open to her employer. There had been an irretrievable breakdown in trust and confidence, a fact acknowledged by both Ms Gallacher and Ms Taggart. Any procedure would not have served a useful purpose ‘and if anything, it would have worsened the situation’. Ms Gallacher appealed.
The appeal was dismissed.
The fact that no procedure is followed prior to dismissal would in many cases give rise to the conclusion that the dismissal was outside the band of reasonable responses and unfair. Such procedures, including giving the employee an opportunity to make representations before dismissal and to appeal against any dismissal, are fundamental to notions of natural justice and fairness and it would be an unusual and rare case where an employer would be acting within the band of reasonable responses in dispensing with such procedures altogether.
However, there are rare cases where procedures may be dispensed with because they would be futile – a fact acknowledged in the seminal Polkey case on fairness.
The EAT said that this was a case involving two senior managers who needed to be able work together effectively in order to deliver what the business required at a critical juncture. The tribunal considered that Ms Gallacher was not interested in retrieving the relationship. That conclusion was supported by, amongst other matters, the findings that neither individual had trust and confidence in the other; that Ms Gallacher had been ‘truculent’ towards Ms Taggart in relation to a recruitment issue; that Ms Gallacher had been unable to put matters behind her and move on; that longstanding issues between them remained unresolved; and that Ms Taggart genuinely believed that there was an irretrievable breakdown in relations.
While ‘dismissals without following any procedures will always be subject to extra caution on the part of the tribunal before being considered to fall within the band of reasonable responses’, here the EAT was satisfied that the tribunal had come to the right conclusion based on the evidence before it.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0027_19_0402.html
This case should be regarded as the exception rather than the rule and at the very least before dismissing for irretrievable breakdown the employer should meet with the employee to talk to them about the situation. However, there will be rare occasions when failure to follow any process at all will not render the dismissal unfair. It is a useful reminder to employees that the worse they behave, the easier it is going to be for the employer to make this argument.