Unfair Dismissal: No procedure can be reasonable

In Gallacher v Abellio Scotrail Ltd UKEATS/0027/19 the Employment Appeal Tribunal held that where, following a complete breakdown in an employer-employee relationship, a dismissal procedure would serve no useful purpose and might instead worsen the situation, a dismissal without following a procedure could be “within the range of reasonable responses” open to the employer under the Employment Rights Act 1996 section 98(4).

The relationship of the Claimant with her employer began to deteriorate when she sought an increase to her salary. The employer refused the increase and relations broke down irreparably; as a result, the Claimant was dismissed at an appraisal meeting. The Claimant subsequently brought a claim in the Employment Tribunal for Unfair Dismissal and disability Discrimination.

As regards disability discrimination, it was accepted by the employer that the Claimant was disabled within the meaning of the Equality Act 2010. The Employment Tribunal concluded, however, that the employer did not know and could not reasonably have been expected to know, that the Claimant had a disability.

As regards Unfair Dismissal, the Employment Tribunal concluded that dismissal had been “for some other substantial reason” under the Employment Rights Act 1996 section 98(1), namely a complete breakdown of trust between employer and employee. As a result of this, the Claimant’s dismissal had been fair, notwithstanding that no formal procedure had been followed beforehand and the ACAS code of practice had not been adhered to. The Claimant appealed to the Employment Appeal Tribunal.

The Employment Appeal Tribunal held that the Employment Tribunal had been entitled to find that the employer’s actions were “within the range of reasonable responses”. However, the Employment Appeal Tribunal noted that this range was “not of indefinite width” and only in “rare” cases could a dismissal without adherence to a procedure be considered fair. In the instant case, the fact that any procedure or appeal would have “worsened the situation” rendered the case exceptional. The Employment Appeal Tribunal also stated that in cases where no procedure was undertaken, extra caution had to be taken to ensure dismissal was fair on the facts.

This case highlights the scope of the “range of reasonable responses” test generally but also demonstrates that if following a dismissal procedure would serve no purpose or worsen the situation, it might be reasonable for an employer to dispense with such a procedure, though the employer should do this only with extreme caution.

Demstone Chambers are Milton Keynes and London based employment barristers. We can assist with all aspects of employment disputes, including: settlement agreements, judicial mediation, Unfair Dismissal, Discrimination and redundancy issues.


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