Employment Law Case Update: Fair Dismissal Procedure

Every employer knows that should they wish to dismiss an employee, they must follow a fair procedure otherwise they could be faced with an unfair dismissal claim in tribunal; but are there exceptions to the rule?  Our Employment Law team reviews the case of Gallacher v Abellio, in which the Employment Tribunal came to the rare ruling that even though the employer did not follow a procedure, the dismissal of Ms Gallacher was still fair.

Ms Linda Gallacher worked for Abellio from 2007 until her dismissal in May 2017, reporting directly to Ms Taggart from 2011. At first Ms Gallacher and Ms Taggart had an amicable working relationship, but in 2014 cracks in the relationship began to show when Ms Taggart learned that Ms Gallacher had made negative comments about her.

Ms Gallacher first began to think of leaving the company in 2015. In 2016, Ms Taggart required Ms Gallacher to participate in the on-call rota despite Ms Gallacher’s protests that she lacked the technical knowledge. Ms Taggart and Ms Gallacher continued to disagree on many things, including the hiring of new members of staff who would report to Ms Gallacher. They held a meeting to discuss the issues in their working relationship, during which Ms Taggart said she felt Ms Gallacher blamed her for the deterioration of the relationship and that she was not interested in Ms Taggart’s thoughts. Members of staff within Ms Gallacher’s team had also begun to express concern over her “leadership, ability to delegate and provide support”.

Around this time, Abellio posted a loss and Ms Taggart felt changes had to be made to meet its targets. She decided to dismiss Ms Gallacher who was informed of the decision in April 2017. In May, at a meeting with HR representative Mr Gibson, Ms Gallacher didn’t dispute that there was a lack of trust between her and Ms Taggart, but did not raise a grievance or suggest mediation.  Mr Gibson confirmed the reason for the dismissal was “not conduct or performance based” but due to “an irretrievable breakdown of [the] working relationship” between Ms Taggart and Ms Gallacher. Not offered the chance to appeal, Ms Gallacher left the company in May, receiving nine weeks’ pay in lieu of notice. Abellio did not follow any process for her dismissal.

Ms Gallacher filed an unfair dismissal claim. The Employment Tribunal found there were significant issues between Ms Gallacher and Ms Taggart. It accepted that by March 2017 Ms Taggart “genuinely believed that the claimant no longer had trust and confidence in her” and that this was the reason for the dismissal. In considering whether the dismissal was reasonable, the ET took into account Abellio’s submission that a breakdown of trust and confidence between senior managers “did not naturally fit into any internal policy” and that there were no alternative roles at the company. The ET found that following a procedure would not “serve any useful purpose” and that “any appeal would have been going through the motions.” The ET therefore ruled that the dismissal was not unfair.

 Ms Gallacher appealed to the Employment Appeal Tribunal, which found the ET correct in its approach by considering whether the decision to terminate without a procedure fell within the “band of reasonable responses” available to the company. The EAT then considered whether the ET correctly applied this approach to the facts of the case - and agreed that this was one of the rare cases where a lack of procedure would not make the dismissal unfair.

In reaching this decision, it cited the fact that Ms Gallacher herself considered there to be a breakdown of the relationship, which she was not willing to repair and that she had already expressed a desire to leave the company.

This case demonstrates that a failure to follow a procedure doesn’t automatically render a dismissal unfair; the entire context of the dismissal will determine whether it was within the band of reasonable responses.  However, the EAT did warn that a failure to follow a procedure will be carefully scrutinised and in many cases, render the dismissal unfair.

In this case, Abellio went forward with the dismissal because it was a critical time for the business and following a procedure would have delayed making necessary changes.

Employers without such pressures may to want consider following a procedure if only to avoid a costly ET claim.

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.