When Can Dismissal Without Procedure Be Fair? Insights from the Employment Appeal Tribunal

It is well established that achieving the right outcome by the wrong method usually won’t wash at the Employment Tribunal. Dismissing an employee without following proper procedure is typically deemed unfair.

However, the Employment Appeal Tribunal (EAT) in London recently considered a rare case where dismissal without a formal procedure was upheld.

Background

The Claimant worked on 5G technology projects from 2017 to 2021. In early 2020, he noticed reduced communication at work and later was signed off sick due to COVID-19 symptoms. Around this time, the employer discontinued 5G work. Despite several invitations to consultation meetings, the Claimant declined due to ill health.

After raising a grievance — partly upheld on appeal — the Claimant sent a confrontational letter threatening further grievances, ethical complaints, and legal action. The employer attempted to restart the redundancy process but abandoned it.

When the Claimant phased back into work in late 2020, the employer offered alternative roles, which the Claimant rejected with unacceptable conditions. Continued complaints and threats followed, leading the employer to conclude the employment relationship had irretrievably broken down.

Employment Tribunal (ET)

The ET dismissed the Claimant’s claim. It held that this was one of the rare cases where a decision to dismiss without a prior warning and without offering a right of appeal was within the range of reasonable responses.  

The reason for the dismissal was that the Respondent had genuinely concluded that trust and confidence between them had broken down irretrievably. The Claimant had turned down all viable options made available to him, and a warning would have likely led to further escalation of the situation. The opportunity to appeal would have been ‘very unlikely’ to have helped restore the relationship.

Employment Appeal Tribunal (EAT)

The EAT held that the Employment Tribunal had been entitled to find that this was one of the rare cases where a dismissal may be fair despite the lack of a formal procedure.

Comment

There are very few reported cases in which employers have successfully argued that going through the normal procedural steps would have been ‘utterly useless’ or ‘futile’. Each case will be very fact-specific. This case indicates the extreme nature of cases that may be classed as such.  

You should always seek legal advice before dismissing an employee due to a breakdown in the relationship and/or without going through a procedure.

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