Guy Matthews v CGI IT UK Ltd

Under section 98(4) of the Employment Rights Act 1996, dismissal without a warning or appeal will ordinarily be unfair. Exceptionally, it may fall within the range of reasonable responses where, assessed from the employer’s position at dismissal, it reasonably considers further procedure futile because a working relationship has irretrievably broken down.

Where dismissal rests on relationship breakdown, the employer must have made reasonable, sensible and genuine efforts to repair it. Its own contribution to the breakdown is highly relevant. A tribunal may make positive findings on causation without mechanically applying the shifting burden of proof where the evidence is clear. The discretion to extend time under section 123 of the Equality Act 2010 is broad and requires consideration of relevant delay and prejudice.

The claimant, a senior technology employee, was dismissed after a failed redundancy process, a grievance and prolonged attempts to agree either a continuing role or a transfer. The Employment Tribunal found that the sole reason for dismissal was an irretrievable breakdown of trust and confidence. It dismissed claims for unfair dismissal and victimisation, and refused to extend time for a reasonable-adjustments claim.

The claimant appealed on the fairness of dismissal without a written warning or appeal, the absence of mediation, the employer’s part in the relationship breakdown, victimisation and the burden of proof, and the refusal of a just-and-equitable extension under section 123 of the Equality Act 2010. The central issue was whether the Tribunal had made an error of law in reaching those conclusions.

1. Appeal dismissed unanimously. The Employment Tribunal was entitled to find that this was the rare case in which dismissal without a written warning or an appeal was fair. Under section 98(4) of the Employment Rights Act 1996, procedural fairness forms part of the overall assessment of whether the employer reasonably treated the reason as sufficient for dismissal.

2. The Tribunal did not apply an impermissible hindsight inquiry into whether a warning or appeal would have altered the result. Read fairly and as a whole, its reasons showed that it assessed the employer’s position when dismissal was decided. Its findings that the parties had reached a terminal, non-remediable stalemate supported the conclusion that further procedure would reasonably have been regarded as futile. The references to what was “likely” or “unlikely” did not disclose application of a lower legal threshold.

3. The Tribunal correctly applied Turner v Vestric Ltd, [1980] ICR 528. An employer relying on relationship breakdown must take reasonable, sensible, practical and genuine steps to improve the relationship and establish that the breakdown is irremediable. The employer’s error in the initial redundancy process was relevant, but the Tribunal was entitled to find that it had made significant and genuine attempts to retain the claimant. It was also entitled to conclude that further mediation was not reasonably required given the claimant’s entrenched demand for action against his manager.

4. On victimisation, the Tribunal was entitled to accept the decision-maker’s evidence and make a positive finding that protected acts had no influence on dismissal. Although it was unfortunate to state that the burden provisions were unnecessary, the Tribunal had in substance proceeded as if the burden had shifted. A stray reference to the wrong causation formulation in a separate detriment section did not undermine its correct application of the material-influence test to dismissal.

5. The Tribunal made no error in refusing an extension under section 123 of the Equality Act 2010. It was entitled to consider the practical forensic prejudice of defending a distinct reasonable-adjustments claim, the limited prejudice to the claimant in light of his principal dismissal claims, the evidence actually advanced about disability, and the late formulation of the alleged PCPs.

• Employment Appeal Tribunal: Appeal dismissed: [2024] EAT 38.
• Employment Tribunal, London Central: By a judgment sent to the parties on 18 November 2022, dismissed the unfair-dismissal and victimisation claims and refused a just-and-equitable extension for the reasonable-adjustments claim.