To avoid a claim for unfair dismissal an organisation needs to demonstrate a potentially fair reason to dismiss and that they followed a fair procedure. Potentially fair reasons are outlined in the Employment Rights Act 1996 and include Some Other Substantial Reason (SOSR). This can occur when there is a loss of mutual trust and confidence between the employee and the organisation.
The fairness of a dismissal depends on whether the employer acted reasonably or unreasonably, which is known as the ‘band of reasonable responses’. In determining the issue of fairness, tribunals will take the size and administrative resources of the organisation into account.
One key issue when determining a fair dismissal is that of the procedure followed that led to it, or if the lack of a procedure could ever be considered fair. This was considered in the landmark case of Polkey v Dayton, which explains that if an organisation reasonably believes that normal procedural steps would be futile and would not alter the decision to dismiss, the test for reasonableness may be satisfied.
The claimant in this case worked directly under a manager, Ms Taggart, with whom she initially had a strong working relationship. However, their relationship began to break down when the claimant’s initial request for a pay rise was refused. Following a business transfer, the claimant began to complain about a perceived change in company culture and expressed wishes to leave. She again requested a pay-rise, which she did receive, however she vocally outlined that she did not trust Ms Taggart to help her in this situation.
As time went on, Ms Taggart asked the claimant to undertake on-call work, which she vocally expressed that she did not wish to do. Both of them also became involved in a recruitment exercise, with Ms Taggart believing that the claimant was preferring an individual who was not ready for a role. Due to issues associated with menopause and depression, the claimant took sick leave away from work. Although the two later held a return to work meeting which Ms Taggart distributed minutes for, the claimant took issue with these and made substantial amendments to them.
By this point, Ms Taggart believed the claimant was no longer happy at work, was blaming her for everything and got angry when asked to do tasks she did not wish to do. Ms Taggart relayed her concerns to HR, outlining that she felt there had been an irretrievable breakdown in trust between them. It was decided that the claimant would be ‘exited from the business’ at her next appraisal meeting. No further procedure was followed, and the claimant was not granted the right to appeal.
The claimant brought a claim of unfair dismissal to the employment tribunal (ET), arguing that the lack of procedure made the decision unfair. The tribunal dismissed her claim.
The ET was satisfied that there had been a break down in the relationship between the claimant and Ms Taggart, and that Ms Taggart’s concerns were genuine. The claimant seemed to be responding poorly to reasonable requests, such as working on-call, and did not seem willing to try and improve the relationship herself. The dismissal had occurred because of a lack of trust and confidence between two employees at a senior level, at a time when the respondent’s business was struggling, meaning it could be considered SOSR.
The tribunal also found that the lack of procedure did not serve to make the dismissal unfair. In keeping with the Polkey findings, from what the tribunal could establish no process could have avoided the dismissal, and an appeal would have been going through the motions. They believed that a procedure could even have served to escalate the situation.
The claimant appealed to the EAT but this was dismissed, with the EAT finding that the tribunal had acted correctly in this situation. They held that dismissals without following any procedures would always be subjected to extra caution by a tribunal when considering if they did fall within the band of reasonable responses. However, there may be rare situations where procedures may be dispensed with because they are reasonably considered to be futile in the circumstances.
As seen here, the tribunal had correctly considered the reason for the dismissal and the circumstances that led up to it. They had expressly considered the reasonableness of not following a procedure and had ultimately concluded, correctly, that such a procedure was fruitless. As they had found, the claimant had recognised the breakdown in relations herself and had not been inclined to retrieve the situation.
This is an interesting outcome which focuses on SOSR dismissals specifically. However, organisations should not get too complacent in these situations; in order to show that a dismissal without a procedure is fair, they will clearly have to demonstrate that such a procedure would have been futile, which was the case here. This will always be fact specific.
It should be noted that this outcome only concerns SOSR dismissals and dismissals concerning conduct should still always follow the correct procedures. To avoid potentially costly unfair dismissal claims, the safest option is to always follow pre-agreed procedures when considering a dismissal, in order to be able to justify that it was fair.