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Employment

Publish date

18 December 2024

Unfair dismissal: breakdown of relationship between employer and employee is ‘some other substantial reason’ justifying dismissal

An Employment Appeal Tribunal (EAT) has dismissed the appeal of an employee who claimed unfair dismissal when her employer dismissed her due to an irretrievable breakdown in the employment relationship.

The claimant in Alexis v Westminster Drug Project argued that her length of service and alternatives to dismissal were not considered.  But the EAT determined that these factors were irrelevant to her case and upheld the decision of the Tribunal. It was deemed that the employer had a fair reason for dismissal, namely ‘some other substantial reason’.

This case demonstrates to employers that there are circumstances where a dismissal due to an irretrievable breakdown in the employment relationship can be justified even, as was the case here, in the context of a restructuring process.  We will explore this further in this article.

Background

Ms Alexis (Ms A) had been working for Westminster Drug Project as an administrator/receptionist. Ms A has dyslexia, which her employer was aware of.

In 2020, her employer made her and two other employees aware that they would be undergoing a restructure.  Three roles were going to be turned into two and all three employees were informed they would be interviewed for the roles in a competitive interview process.

The interview involved answering some standard questions.  Due to Mrs A’s dyslexia, her employer sent her the questions 15 minutes prior to interview.  Mrs A was not told that this had been done and did not see the questions in advance of the first interview and saw them  10 minutes before the second interview.

Ms A was not selected for either role.  She raised a grievance stating the process was unfair and that she should have received the questions 24 hours in advance due to her dyslexia.

Her grievance was upheld in part as her employer agreed they had not notified her that the questions had been sent to her in advance.  It rejected the request for 24 hours’ notice of the questions though.  Ms A was offered a fresh interview, but was dissatisfied and appealed.

She also rejected the outcome of the appeal, which was largely favourable to her in that it offered her extended time and a new set of questions, with question headings and a summary of competencies to be sent 24 hours in advance.

Ms A became increasingly more obstructive and sent numerous emails to the decision maker and the employer’s chairman, expressing her discontent.

She was invited to a meeting to discuss the employer’s conclusion that Mrs A had no confidence in her employer and the relationship between Ms A and the employer had irretrievably broken down.

Ms A was subsequently dismissed in February 2021. She bought an unfair dismissal claim.

The Employment Tribunal decided that the decision to dismiss Ms A was fair.  Ms A appealed, and the EAT addressed the following two grounds of appeal:

  • no sufficient consideration was given to her length of service; and
  • no or no sufficient consideration was given to the alternative outcome of a warning.

In addressing the first issue, the EAT stated that an employer is only obliged to consider length of service if it is relevant to the decision to dismiss. The decision to dismiss in this case was based on trust and confidence having irretrievably broken down between the parties. Ms A’s length of service was therefore irrelevant.

On the second point, the EAT held that “this was not a case where any other sanction would have been appropriate. Once trust and confidence had irretrievably broken down the only option was dismissal”.

The EAT concluded that the employer had fairly dismissed Ms A due to an irretrievable breakdown in the employment relationship, which comes under ‘some other substantial reason’ (SOSR) for dismissal in the list of potentially fair reasons for dismissal.

Unfair Dismissal: Some Other Substantial Reason

SOSR covers a wide variety of situations. Examples include:

  • Personality clashes
  • Expiration of a fixed term contract
  • Where there is a reputational risk to the employer
  • Refusal to accept changes to terms of employment
  • Where there has been a breakdown of trust and confidence.

The employer will need to show that the decision to dismiss for SOSR was reasonable in all the circumstances, taking into account the size and resources of the employer and that a fair procedure was followed in dismissing the employee.

SOSR dismissals can be a useful means for an employer to justify a dismissal that does not fit easily into the more common reasons for dismissal (e.g. misconduct or redundancy).  In the Alexis case, without the option of a SOSR dismissal, the employer would have had to continue to address further complaints and appeals from an employee before it could conclude the process and dismiss for redundancy, in circumstances where the employee had shown that she was not going to accept any outcome.

Tribunals will be wary though of employers too easily going down the SOSR route where the real reason for dismissal is one of the other potentially fair reasons for dismissal.  We recommend taking advice before proceeding with a SOSR dismissal.

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