In a rather unusual circumstances case, Mrs Gallacher the Claimant, who was a senior manager in Abellio ScotRail Ltd (a rail business), brought unfair dismissal proceedings after being dismissed without any procedure. Her relationship with her line manager deteriorated at a critical juncture for Abellio’s business. Her manager decided, after consulting with HR, to dismiss her at an appraisal meeting with no procedure, forewarning or right of appeal. The Tribunal unusually found the dismissal to be fair because the decision to dismiss was within a band of reasonable responses in these particular circumstances. The band of reasonable responses test is the test that the Tribunals use to decide whether a dismissal is within the band of reasonable responses to particular circumstance, which an employer is entitled to utilise, provided the response is reasonable.
In this case, the Tribunal decided that holding a formal procedure would have made the situation worse. When the Claimant appealed to the Employment Appeal Tribunal, they declined to overturn the Employment Tribunal decision. Noting again that there were rather unusual circumstances of the case, the EAT commented that there may be cases, albeit rare, where procedures could be dispensed with because they are reasonably considered by an employer to be futile in the circumstances. The Tribunal had found that on both sides, the working relationship had broken down. There is no rule of law that the absence of any procedure renders a dismissal unfair. All the circumstances have to be taken into account under the reasonableness test enshrined in the Employment Rights Act. This includes the size and administrative resources of the employer’s business. However the Employment Appeal Tribunal noted that dismissals without following any procedures will also be subject to extra caution on the part of the Tribunal before being considered to fall within the band of reasonable responses.
This is a tricky area to advise on, particularly where working relationships are concerned. Conventionally, the advice has always been to deal with the matter of a breakdown in relationships as a conduct issue because usually, someone is at fault or they have instigated actions that have led to a breakdown. But there are situations where employees just do not get on, because they do not like each other and liking someone is key to trusting them. If they cannot conduct a civilised and constructive working relationship with each other, to try and impose some sort of disciplinary procedure on such circumstances can make the situation worse by escalating feelings on both sides. So our advice should always be sought before an employer wishes to dismiss someone because of a breakdown in working relationships.
As advisers, we will always try and identify where the fault lies and whether it is a mixture of failings on both sides. Even if a formal procedure is not adopted that would lead to a fair dismissal (within the band of reasonable responses) it is possible to persuade a Tribunal to accept that there may be a contributory fault element or blame-worthy aspect to be taken into account in considering compensation, which can be reduced to nil. Based on 100% contribution to the circumstances leading to the dismissal.
Circumstances where any sort of formal process can be dispensed with on the grounds of futility will be very rare. Our advice should always be sought in these sensitive situations. Workplace mediation should be considered at the very least.