The Employment Appeal Tribunal have handed down a judgment in the case of Gallacher v Abellio Scotrail Ltd that states a dismissal based on Some Other Substantial Reason (SOSR), namely the breakdown of trust and confidence between the parties, was held to be lawful even where the employer failed to follow a fair procedure.
In this case, the Claimant (C) and her Line Manager (LM) had a series of disagreements relating to C’s pay, working patterns and recruitment decisions. Both C and her LM searched for an alternative internal position for C but with no success. LM decided that there had been an irretrievable breakdown in the relationship which could hinder the business response during the crisis. As a result, she consulted the Head of HR who concluded that the matter was not one of conduct or disciplinary, and so a procedure would not assist.
C was informed of her dismissal at a pre-arranged annual appraisal meeting and was not given an opportunity to appeal the decision due to the lack of procedure involved. C was paid in lieu of her notice period and did not dispute that the relationship between her and LM had broken down when informed that this was the reason for her dismissal.
C subsequently brought a claim in the Employment Tribunal (ET) stating that her dismissal had been unfair and amounted to discrimination in connection with her disability, which was symptoms suffered in connection with menopause and depression. The ET concluded that C’s employer did not know and could not have reasonably been expected to know about her disability and agreed that the dismissal was for SOSR. The ET acknowledged that the ACAS Code of Conduct did not apply in these circumstances as it was not a case of disciplinary, but one of SOSR due to the breakdown of trust and confidence. The ET further considered whether following a procedure would have had any difference, but concluded that it would not have, if anything it could have worsened the situation.
C appealed the decision of the ET to the Employment Appeal Tribunal (EAT) who concluded that an employer may dispense with following procedures where they could reasonably be futile, therefore the dismissal was lawful.
Point to Note
The key point to keep in mind from this is that it is very rare for an ET and EAT to conclude that a dismissal was fair where there was no procedure followed, however it does show that the Tribunal will make a judgment based on the overall facts of the case.