Can a dismissal without any procedure ever be fair?

The EAT recently decided in the case of Gallacher v Abellio ScotRail UKEATS/0027/19/SS that an employee had been fairly dismissed despite the fact that her employer chose not to follow any form of dismissal procedure.

Facts

Mrs Gallacher was a senior manager at Abellio ScotRail (“Scotrail”).  Over the course of her employment, the relationship between herself and her line manager became strained as a result of various disputes relating predominantly to salary and recruitment issues.  There were a couple meetings to discuss their relationship, but ultimately both parties felt that the relationship had broken down irreparably.

After consulting with HR, her line manager decided to dismiss Mrs Gallacher during an annual appraisal meeting, citing an irretrievable breakdown of working relations. There was no procedure, forewarning or right of appeal. Unsurprisingly, Mrs Gallacher brought a claim against ScotRail, arguing (amongst other things) that her dismissal was unfair.

Tribunal decision

The Employment Tribunal (ET) agreed that there was clearly a lack of trust and confidence between the two employees and that this had become a barrier to delivering the objectives of the business. 

The ET also acknowledged that the complete lack of dismissal procedure would, in most cases, result in a dismissal being regarded as unfair.  However, they went on to say that an irretrievable breakdown in trust and confidence, particularly between two senior employees at a critical time for the business, made this situation somewhat different. The ET also took into account the fact that Mrs Gallacher was not interested in rescuing the relationship, so a procedure would have been unlikely to change the end result. In fact, it would (in the ET’s view) have made matters worse. In light of this, the ET found that the decision to dismiss Mrs Gallacher without any formal procedure was, in this instance, within the band of reasonable responses available to ScotRail and therefore fair.

Employment Appeal Tribunal

Mrs Gallacher appealed the decision but the EAT dismissed her appeal.

Though the EAT warned that any dismissal without procedure should be approached with a high level of caution, if it is clear that a procedure would prove to be futile then an employer can choose to dispense with it.  No piece of legislation or case law expressly states that having no procedure equates to unfairness – all the circumstances of the case need to be taken into account.

Comments

This is a rare example where a dismissal in the absence of any procedure was still considered to fall within the range of reasonable responses available to an employer. Whilst we would always advise extreme caution in dispensing with any dismissal procedure where an employee has unfair dismissal rights, this provides a useful reference point for employers who find themselves in situations whereby the relationship between two key employees has broken down past repair.

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Elizabeth Marshall

About Elizabeth Marshall

Elizabeth is a senior associate in the People, Reward and Mobility practice of Dentons' London office, specializing in employment law. Elizabeth works closely with national and international organizations, as well as senior executives, and has more than 10 years of experience advising on the full range of employment law issues, having qualified in 2010.

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