“Loss of trust and confidence” is often pleaded as a basis for a fair dismissal, but rarely successfully. Employment Tribunals are astute to employers using it as a short cut to address performance or conduct issues without going through a proper procedure. After all, a dismissal without a fair procedure is going to be unfair anyway, yes?
Gallacher -v- Abellio Scotrail is one of those rare cases where procedure-free dismissal for loss of trust and confidence was found to be fair. On the facts it is a very sensible decision; on The Law, just about sustainable; and on almost no occasions a case which employers should rely upon.
Start with The Law. Paraphrased, that says that in order to be fair, the manner of a dismissal must be within the band of reasonable responses to the facts faced by the employer. Though it often feels like it, there is no statutory rule that without an ACAS-compliant procedure, the employer is doomed.
Then the facts. These involved senior manager Ms Gallacher and her own line manager Ms Taggart. Initially they got on well but the relationship soured when Gallacher asked Taggart for an increase and didn’t get one. She began to speak ill of Taggart to other employees, made it clear that she did not trust her, was indifferent to any instruction from Taggart she did not agree with, and sulked badly when not given her head on recruitment matters. Gallacher seemed unable to put matters behind her and would not accept either at the time (or even by the point of the ET hearing) that any of Taggart’s views on key issues had any validity. She remained resolutely of the view that everything she disliked about the job was Taggart’s fault. Gallacher did not hide the fact that she was looking for a transfer away from Taggart and did not demur or evince any regret when it was finally suggested that the necessary working relationship between them, already on its knees, had pitched forward onto its tiny face and died.
A number of matters compounded the problem. Gallacher was quite senior and her attitude to Taggart was therefore harder to ignore. In addition, it was a time of particular pressure and poor results for the business. The Employment Tribunal accepted that Taggart (with whom stopped many of the relevant bucks) had quite legitimately had less time and patience to devote to this matter than might otherwise have been the case.
The Tribunal had also concluded that the demise of that necessary relationship with Taggart had been as visible to Gallacher as to Abellio, and yet she had still done nothing about it. In consequence, there was no realistic prospect of formal procedures making things better and every likelihood that they would merely move the relationship from dead to buried. Any appeal would just have been “going through the motions“, it said.
So in May 2017 Gallacher attended what she thought was an evaluation meeting only to be told out of the blue that she was being let go and moreover that she was not being offered any right of appeal. Bold move.
The ET found the dismissal fair. This was upheld by the EAT, but only with a clear shot across the bows of any other employer thinking of trying the same thing: “It would be an unusual and rare case where an employer would be acting within the band of reasonable responses in dispensing with such procedure altogether“. Such a case would require the employer to conclude reasonably at the time of the dismissal that “in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not [NB, not would not] have altered the decision to dismiss and therefore could be dispensed with“. The hurdle is a very high one, but the EAT found on these relatively clear facts that Abellio had cleared it with some ease.
Three tips for employers in similar circumstances unclear whether they have enough to dismiss without process on these grounds:
- you probably don’t; and
- you may be able to do something about that. One of Gallacher’s attacks on the process was that Abellio had not suggested any form of mediation between her and Taggart. It was suggested that if she had been told in terms that unless the relationship was retrieved very quickly she might lose her job, she might have been able to swallow her assorted resentments and grievance, outwardly at least, long enough to find another role.
The EAT saw that argument but noted that Gallacher had not previously denied that there had been a breakdown or expressed any interest in restoring it. Through her search for a post elsewhere within the organisation, she had mentally already “left the building”. The EAT did not think in those circumstances that it would be fair to put Abellio down for not inviting Gallacher to participate in a process in which she was clearly not interested and which neither side would actually have wanted to succeed.
But these were extreme facts. Where that is less the case, the offer of mediation in these circumstances can be a very effective tool in the employer’s hands. If it works, problem solved. If it does not, or the employee declines to participate in good faith, there on a plate is a potent sign that the relationship has indeed breathed its last – not speculation or assumption by the employer, but the hard evidence of a failure to revive it. [NB, of course if it is the Taggart in your case who refuses to mediate, that is a very different situation. Then the employer would need to take a new look at just where the problem lay between the parties and who actually was the obstacle to an adequate working relationship. It is for from necessarily the Gallacher in every case]
- If in doubt about a relationship-breakdown case, therefore, do not rely on this decision, but do consider offering mediation. You may be surprised by what comes out of it.