It is only in very rare cases that an employee can be fairly dismissed if the employer fails to follow a disciplinary procedure. In Gallacher v Abellio Scotrail Ltd, however, the Employment Appeal Tribunal (EAT) held that it was open to the tribunal to find that a dismissal was fair, although the employer did not notify the employee in advance that she was at risk of dismissal and failed to allow her to appeal.
Basic facts
Ms Gallacher was a senior employee at Abellio. Although she initially had a good working relationship with her manager, Ms Taggart, it started to deteriorate following a number of disagreements between them to do with salary, joining the on-call rota and the choice of a recruit to Ms Gallacher’s team. In addition, some of Ms Gallacher’s direct reports expressed concern to Ms Taggart about her leadership, ability to delegate and provide support.
As the business was entering a critical phase around this time, Ms Taggart was concerned that she would be unable to rely on Ms Gallacher to “take forward the Customer Experience key deliverables.” Having looked unsuccessfully for other opportunities for Ms Gallacher elsewhere in the business and after consulting with Human Resources, Ms Taggart concluded that she would have to dismiss Ms Gallacher due to a breakdown in trust and confidence.
Ms Gallacher was informed of the decision at her pre-arranged annual appraisal meeting. She was not offered a right of appeal. She brought claims of unfair dismissal, among other things.
Tribunal decision
Noting the disagreements between Ms Taggart and Ms Gallacher, the tribunal concluded that the reason for the dismissal was a lack of trust and confidence between two employees at senior level, which was a barrier to delivering the objectives of the business. The dismissal was therefore for some other substantial reason.
The tribunal then considered the reasonableness of the company’s failure to follow any process and concluded that it would not have served any useful purpose. Indeed, it took the view that it could have made matters worse in these particular circumstances, given the irretrievable breakdown in trust and confidence between the two managers.
Ms Gallacher appealed against the decision that the dismissal was fair on the basis that she was not given any notice that her annual appraisal meeting would be used to inform her of her dismissal and she was not given any opportunity to appeal.
EAT decision
Noting that procedures such as giving an employee the opportunity to make representations before dismissal and to appeal against dismissal are fundamental to notions of natural justice, the EAT cautioned tribunals to be wary of the argument that it would have been futile for the employer to follow a procedure.
As such, it followed that 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, this was one of them. This was because the case involved two senior managers who needed to be able to work together effectively in order to deliver what the business required at a critical juncture.
The tribunal had found that Ms Gallacher was not interested in trying to repair the relationship, a conclusion that was supported by the finding that neither individual had trust and confidence in the other; that Ms Gallacher had been “truculent” towards Ms Taggart in relation to the recruitment issue; that she 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 between them.
The EAT therefore dismissed the appeal on the basis that dismissal in these circumstances without any procedure was within the band of reasonable responses.
Comment
The circumstances that gave rise to this claim were very unusual and it will be a very rare case where an employer will be found to have fairly dismissed an employee without following a procedure. It was found that the employer reasonably considered that it would be futile to follow a procedure because of the irretrievable breakdown in trust and confidence on the part of the parties. The EAT stated that cases where an employee is dismissed without a procedure being followed will always be subject to extra caution on the tribunal’s part before being considered to fall within a reasonable band of responses on the employer’s part.