Fairness of dismissal — where there is a breakdown in the working relationship

Was a dismissal for a breakdown in working relationships was fair, notwithstanding that the employee was not given a written warning nor offered an appeal?

This was considered in the case of Matthews v CGI IT UK Ltd

Facts

The claimant, Mr Matthews was employed as a Consulting Expert by the respondent, CGI IT UK Ltd.

Whilst the claimant was off sick with Covid, the respondent commenced a redundancy process; the claimant was advised that he was at risk of redundancy. However, he declined to attend the consultation meetings, on a number of occasions as he said he was unwell.

The claimant was not made redundant but nevertheless raised a grievance, which was partly upheld on appeal. The appeal chair however, did not uphold the appeal in respect of the claimant’s allegations that his line manager, had undermined or scapegoated him.

Upon receipt of the outcome, the claimant wrote a confrontational letter, accusing the appeal chair of incompetence and making things up, and saying that he intended to raise further grievances. He also indicated that he would bring an employment tribunal claim and notify the respondent’s internal ethics team.

In November 2020, the claimant commenced a phased return to work; there were discussions to find the claimant a role and agree a way forward. The claimant did not agree with the reasonable proposals put forward by the respondent, and continued to raise further issues and threaten grievances, complaints to the ethics team and legal action. He said that his trust in the respondent "was hitting very low levels."

In December 2020, a new role was created for the claimant in a different team. However, he refused to make a decision whether to stay in his current role or move to the new team. He said that his trust in the respondent had been undermined and that he would "in due course be left with little option". He did not make a choice in the given timeframe regarding the two options, and maintained that both options were untenable. An ultimatum was issued to the claimant to move to the new team. The claimant advised that he was taking legal advice and expected that legal action was inevitable. A few days later, the respondent decided that the relationship between the respondent and the claimant had irretrievably broken down and that the only remaining option was to terminate the claimant’s employment. The claimant was paid in lieu of notice and no right of appeal was offered.

The legal bit

Section 98(4) of the Employment Rights Act 1996 (ERA 1996) states, where an employer can show a potentially fair reason for dismissal:

"the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

The Claim

The claimant issued proceedings in the Employment Tribunal (ET) for unfair dismissal, automatic unfair dismissal and detriment for making a protected disclosure, victimisation and failure to make reasonable adjustments.

The ET held that the only reason for the claimant’s dismissal was that the respondent genuinely concluded that the relationship of trust and confidence between them had broken down irretrievably, and that this was a reasonable belief. The respondent had made significant attempts to find a solution, however, the claimant turned down all options, leaving no option but to dismiss.

The Tribunal stated that this was one of the rare cases where the decision to dismiss without a prior warning and without offering a right of appeal was within the range of reasonable responses and therefore the claims were dismissed.

The claimant appealed.

Decision

The Employment Appeal Tribunal dismissed the appeal on all grounds. The EAT referred to the case of Polkey v AE Dayton Services Ltd (Polkey). This case addresses the fairness of a dismissal where an employer has failed to follow proper procedural steps. The Polkey case confirms that there can be exceptional circumstances where an employer’s failure to follow a fair process may nevertheless be a fair dismissal. This will be in circumstances where it can be established that any process would not have made any difference. The EAT held that the respondent had taken significant steps to rebuild the trust and accommodate the claimant, which were rejected by the claimant.

The EAT held that the ET had been entitled to find that this was one of the rare cases where a dismissal may be fair although there has been no formal process implemented prior to the decision taken to dismiss.

Comment

This is an example of a case where an employer can carry out a fair dismissal without following the usual procedure. It should be noted that the facts of this case are unique and show both the obstinacy of the employee and that reasonableness of the employer. In circumstances where an employer has gone out of its way to mend a relationship, but the employee remains intransigent then a dismissal in the absence of a process may be deemed to be fair.