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4th November 2020

The Employer/Employee “Mexican Stand Off”

A prudent business should have robust HR procedures in place; ready to deal with employee issues of conduct, capability or performance, in the interests of fairness.  A structured approach is likely to get to the root of the problem and affords the employer and the employee ample opportunity to state their case.  But what if the trust and confidence between employer and employee is so far gone and the relationship so sour, that applying a procedure may actually exacerbate matters; is it ever fair to dismiss an employee, without following the disciplinary process?

Dismissal for an irretrievable breakdown in trust and confidence causing the obstruction of carrying out business may be considered ‘some other substantial reason’ within the meaning of Section 98(1) of the Employment Act 1996.  A tribunal would then consider if the dismissal was fair in all the circumstances in accordance with Section 98(4) of the Act.  This would require a consideration of whether the employer’s reasons for dismissal fell within the band of reasonable responses; this would then be extended to look at the reasonableness of dismissing without following a procedure, based on the circumstances of the case.

An ET would most likely take a dim view of an employer dispensing with procedures as they provide a cornerstone of natural justice and fairness whilst affording a platform to make representations and appeal against a dismissal.  However, it was stated in Polkey v Dayton that in the exceptional circumstances of a particular case, procedures may be dispensed with, if they were deemed to be futile and could not alter the decision to dismiss. This is a small and rare window to explore (based on the unique facts of the case), yet the ET and EAT in Gallagher v Abellio Scotrail Ltd chose to support this view.

The claimant was a senior manager whom, over a period of time, on numerous occasions, clashed with her consequent line manager, Ms Taggart.  Ms Gallagher had requested a salary increase and challenged a business culture change, including objecting to being placed on-call.  She was vocal in her issues with others, openly wanted out and there were periods of sickness and absence.  The respondent was under significant pressure as a loss-making business and Ms Taggart’s directorate was a critical component in moving the customer experience deliverables forward.  It was clear from the evidence that Ms Taggart was unable to rely on Ms Gallagher to perform her role within the team and that she could not be trusted.  The claimant was called to an appraisal meeting and was subsequently dismissed from her role without procedure and without offer of appeal.

A tribunal and EAT dismissed the unfair dismissal claim and also a disability discrimination claim made on the basis that Ms Gallagher was menopausal and suffering from depression.  The case notes set out evidence of meetings where Ms Taggart was sympathetic to the claimant’s fitness to work, warns of the challenges faced and offers an OH referral to Ms Gallagher as part of a phased return to work.  The claimant was inclined to refuse medical treatment and she insisted that she was fit to work and didn’t raise any requests for reasonable adjustments.

The tribunal considered the relationship broken, taking the view that any attempts to conduct disciplinary procedures would actually have made the situation worse.  This could be considered a compassionate stance, that formal proceedings would have further impacted Ms Gallagher’s mental health and led to further absence; although she surely won’t see it that way.

This fascinating case demonstrates the employer/employee “Mexican Stand Off.”  There was no real strategy to progress the situation on either side using procedures available; yet any attempts made were likely to incur a detriment to one or more of the parties.  It seemed inevitable that the case would end up before an Employment Tribunal, regardless of the actions of those involved.

Excellent policies and procedures are likely to protect an employer from unfair dismissal claims.  All situations are different on the facts, so please call 0845 459 1724 in the first instance to discuss.

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