Can a dismissal be fair when no process has been followed? Yes potentially.

The EAT has upheld an employment tribunal’s finding that a dismissal for “some other substantial reason”, effected by an employer without following any procedure, was not unfair. Following a breakdown in working relations between the claimant and her line manager, arising out of various workplace disagreements, the claimant was told at her annual appraisal that she was being exited from the business due to a lack of trust. There had, however, been at least two previous meetings to consider the difficulties in the relationship. 

The EAT (Choudhury P) observed that a failure to carry out any procedure would in many cases lead to the conclusion that the dismissal was outside the band of reasonable responses. However, where following procedures could reasonably be considered to be futile, the employer may dispense with them. This was a rare example of such a case. The claimant was a senior manager whose continued good working relationship with her manager was critical during a difficult period for the employer’s business. After a thorough consideration of the evidence, the tribunal had found not only that a procedure would not have served any useful purpose, but that it would have worsened the situation. This was a conclusion it had been entitled to reach. This was effectively a personality clash between two senior managers, where neither individual had trust and confidence in the other. The evidence was that the claimant recognised the breakdown in relations herself and had no interest in repairing it. In these circumstances, the tribunal’s finding could stand. 

The tribunal’s finding that there had been no discriminatory treatment was also upheld. The tribunal had not found any causative link between the act complained of and the alleged disability. In any event, the claimant was not herself aware that she was disabled at the time, and knowledge of the disability could not be imputed to the employer. 

Case: Gallacher v Abellio Scotrail Ltd UKEATS/0027/19 (4 February 2020) (Choudhury P).

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