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Can a dismissal without any ‘due process’ be fair?

September 7, 2020
Employment Law

In almost all cases, when an employer intends to dismiss an employee, they need to be clear about the fair reason for the dismissal and they need to adopt the correct dismissal procedure. But can a dismissal still be fair even if no procedure is followed? The recent case of Gallacher v Abellio Scotrail considered the issue.

The facts

Ms G had continuous employment dating back almost 10 years, when she was dismissed from her job as a senior manager in May 2017. Over the course of a number of years, Ms G’s relationship with her line manager had gradually broken down. A variety of issues had caused the decline, including Ms G’s dissatisfaction with her salary, her reluctance to cooperate with an ‘on-call rota’ and disagreements over the appointment of other team members.

Ultimately, at her annual appraisal meeting and without any forewarning, Ms G’s line manager gave her notice of dismissal, concluding that their working relationship had irretrievably broken down. Ms G was not required to work her notice period and was given no opportunity to appeal.

The decision

When Ms G’s claim for unfair dismissal was heard by an Employment Tribunal, perhaps rather surprisingly, the Employment Judge concluded that the decision to dismiss the employee was within the band of reasonable responses open to the employer. The Employment Judge took account of the fact that Ms G did not deny that her relationship with her line manger had broken down. Indeed, the Judge considered that going through a ‘normal’ dismissal process would have made the situation worse.

Ms G took her case to the Employment Appeal Tribunal, but her appeal was unsuccessful. The EAT concluded that whilst it will be a rare case indeed where a dismissal without any of the ‘normal’ procedure will be fair, the ET was entitled to find that this was one such case.

So what?

Before line managers get too excited, this decision is not a ‘green light’ to ignore all those carefully drafted HR procedures and skip straight to the dismissal letter. This should rightly be viewed as an exceptional case that turned on its very particular facts.

It is worth noting that EAT observed in its judgment that

"Dismissals without following any procedures will always be

subject to extra caution on the part of the Tribunal before being considered

to fall within the band of reasonable responses."

With this in mind, it is back to the grindstone. ‘Due process’ in dismissal cases remains the order of the day.

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