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You’re still fired!

It is well established that the right outcome by the wrong method won’t wash at the Employment Tribunal. To dismiss without going through the proper procedure will be deemed unfair. Usually.

The Employment Appeal Tribunal in London recently considered an unusual case…

Background

The Claimant was employed between 2017 and 2021 to work on 5G technology projects.  

In January 2020, he raised concerns that he was receiving fewer emails, updates and meeting invites. After developing COVID symptoms, he was signed off sick from May 2020. Around that time, the Respondent discontinued work on 5G. The Claimant was invited to attend a consultation on several occasions but declined due to ill health. 

He then raised a grievance, which was partly upheld on appeal. Allegations that his line manager had undermined or scapegoated him were not upheld. The Claimant then wrote a confrontational letter threatening: further grievances, notifying the internal ethics team, and a tribunal claim. 

The Respondent sought to restart the redundancy process, which was later abandoned.

In November 2020, the Claimant started a phased return to work. The Respondent attempted to find him a role and provided him with some alternatives. The Claimant did not agree with these options and set various conditions that were not acceptable. He continued to raise further issues, threaten grievances, complain to the ethics team and take legal action.  

Attempts to place the Claimant in a newly created role failed and led to him concluding that his position had become untenable.  The Respondent felt that the relationship had broken down such that the only option was to terminate the Claimant’s employment.

The matter found its way to the Employment Tribunal.

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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