Procedure-free dismissal found fair! Don’t try this at home!
Loss of “trust and confidence” is often pleaded as a basis for a fair dismissal, but rarely successfully. Employment Tribunals are astute to employers using it as a short cut to address performance or conduct issues without going through a proper procedure. After all, a dismissal without a fair procedure is going to be unfair anyway isn’t it?
Gallacher v Abellio Scotrail is one of those rare cases where the procedure-free dismissal for loss of trust and confidence was found to be fair. On the facts it appears to be a very sensible decision; on The Law, just about sustainable; and on almost no occasion a case which employers should rely upon.
Summary of the case
Two senior managers (Gallagher and Taggart) initially got on well until Gallagher’s request for a pay increase was refused. Gallagher then started speaking out about Taggart and the relationship turned sour and Gallagher began looking for other jobs within the organisation as a way to escape Taggart.
In May 2017, Gallagher attended an evaluation meeting where she was let go with no explanation or right of appeal. The ET found the dismissal was fair and this was upheld by the EAT in February 2020.
The EAT is clear though “It would be an unusual and rare case where an employer would be acting within the band of reasonable responses in dispensing with such procedure altogether”. Such a case would require the employer to conclude reasonably at the time of the dismissal that “in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not [NB, not would not] have altered the decision to dismiss and therefore could be dispensed with”.
The hurdle is a very high one, but the EAT found on these relatively clear facts that Abellio had cleared it with some ease.
So what happens if you have a breakdown in relationships with 2 senior managers?
Should you just forget the process altogether without trying to resolve it first?
Options to consider could include;
- Mediation can be a very effective tool if done properly and both parties agree
- Regular informal meetings with the employees to discuss the disruptive nature of their broken working relationship
If in doubt contact a DLP Advisor for further advice.