Gallacher v Abellio Scotrail Limited

A dismissal for an irretrievable breakdown of trust and confidence may amount to some other substantial reason. Fairness remains governed by the band of reasonable responses under section 98(4) of the Employment Act 1996.

Dispensing with every pre-dismissal procedure, including an opportunity to appeal, will usually be unfair. It may nevertheless be fair in the rare case where the employer reasonably concludes that procedure would be futile and could worsen an irretrievable relationship breakdown. The tribunal must approach that conclusion with particular caution and assess all the circumstances, including the parties’ seniority, business needs and any realistic prospect of restoring the relationship.

The Claimant, a senior manager, was dismissed after the Employment Tribunal found an irretrievable breakdown in her working relationship with her manager. No formal dismissal procedure, appeal or occupational-health report preceded the dismissal. The Tribunal held that the dismissal was for some other substantial reason and was fair. It also dismissed disability-discrimination claims, finding that the Respondent neither knew nor could reasonably have been expected to know that the Claimant was disabled.

The Claimant appealed from the Glasgow Employment Tribunal. The permitted grounds challenged the fairness of a dismissal without procedure or appeal, and the finding that the Respondent lacked actual or constructive knowledge of disability.

1. Appeal dismissed. The Employment Tribunal made an unchallenged finding that the dismissal was for some other substantial reason: an irretrievable breakdown of trust and confidence between two senior managers, which obstructed delivery of business objectives. That finding was capable of bringing the dismissal within section 98(1) of the Employment Act 1996.
2. Under section 98(4), the Tribunal correctly applied the band-of-reasonable-responses test. The rule against substitution did not prevent it from finding a dismissal unfair if it fell outside that band. It required the Tribunal to assess the employer’s actual response rather than decide what the Tribunal itself would have done. The EAT applied Newbound v Thames Water Utilities Limited [2015] IRLR 734 and relied on the procedural-futility principle stated in Polkey v Dayton.
3. The absence of any procedure, representations or appeal would commonly make dismissal unfair. Those safeguards are fundamental to fairness. However, they are not invariably required where, in exceptional circumstances, the employer reasonably concludes that they would be futile and would not alter the dismissal decision.
4. This was such a rare case. The Tribunal was entitled to find that a process would have served no useful purpose and would have worsened matters. The relationship concerned senior managers at a critical time for the business; both lacked trust and confidence in the other; no alternative role was available; and the Claimant had shown no contemporaneous interest in repairing the relationship. The conclusion was not perverse.
5. The constructive-knowledge ground also failed. The Tribunal was entitled to find that the information provided did not establish the substantial and long-term effects required by section 6 of the 2010 Act. The Claimant had under-reported symptoms and did not consider herself disadvantaged by the arrangements made. An occupational-health referral was unlikely to have altered the Respondent’s knowledge. In any event, the discrimination point was academic because the Tribunal found no causal link between the dismissal and disability or anything arising from it.

• Employment Appeal Tribunal: appeal dismissed; the Glasgow Employment Tribunal’s dismissal of the unfair-dismissal and disability-discrimination claims was upheld.
• Glasgow Employment Tribunal: held the dismissal fair and rejected the discrimination claims.