Irretrievable breakdown of a working relationship
18 April 2024
In a recent decision, the Employment Appeal Tribunal (EAT) has considered whether the dismissal of an employee due to a breakdown in working relationships was fair, even without any prior warning or right of appeal.
Matthews v CGI IT UK Ltd [2024] EAT 38
Facts of the case
The employee in this case, M, was employed as a Director/Consulting Expert in ‘Emerging Technology’, with a particular focus on 5G technology. During an extended period of sickness absence, the company advised him that he was at risk of redundancy because it had decided to discontinue its work relating to 5G technology. M declined on several occasions to attend a consultation meeting, due to his continuing ill health.
M later raised a grievance relating to the redundancy process and complaining about the behaviour of his line manager, which was partly upheld on appeal. In response, M wrote a confrontational letter accusing the appeal chair of being incompetent, and he indicated an intention to raise further grievances and pursue an employment tribunal claim.
During a phased return to work, attempts were made to reach an agreement with M about his future role, all of which failed. He continued to raise further issues and complain about his line manager, threatening grievances and legal action. Eventually, he was told that a new role in another team was the only viable option, but when he failed to accept this a more senior manager decided that the relationship between the company and M had irretrievably broken down and the only option was to terminate his employment. M was paid in lieu of his notice entitlement and was not offered a right of appeal against the decision to dismiss him.
An employment tribunal rejected all of M’s claims, which included unfair dismissal, automatic unfair dismissal and detriment for making protected disclosures and failure to make reasonable adjustments. It held that the sole reason for his dismissal was the company’s reasonable belief that the relationship of trust and confidence between them had broken down irretrievably. The company had genuinely and persistently tried to find a solution, but M had turned down all possible options leaving no viable alternative to dismissal. It did not consider that issuing M with a warning would have changed his stance, and it was not unreasonable for the company not to have considered mediation as an alternative to dismissal.
M appealed the tribunal’s decision to the EAT.
EAT decision
The EAT dismissed M’s appeal on all grounds, upholding the tribunal’s decision that his dismissal was fair. The tribunal had been entitled to find that this was one of the rare cases in which a dismissal may be fair even though there has been no formal procedure. The tribunal had found that the company was reasonable in concluding the relationship “not remediable”, meaning it was reasonable to consider that a warning or appeal would be utterly useless or futile. The EAT reiterated that the fairness of the procedure must not be considered in isolation, but as part of the test of whether the employer had acted reasonably in its decision to dismiss.
The Birketts view
The tribunal had noted in its decision that this was one of the rare cases where the decision to dismiss without a prior warning, and without offering a right of appeal, was within the range of reasonable responses. However, in practice this will only apply in very exceptional circumstances. This case involved a senior employee, and the employer could show that it had already gone to some considerable lengths to try and find a reasonable solution.
The EAT referred to previous authority that had established it might be reasonable to expect an employer to do more to repair a relationship where the employer’s conduct is to blame for the initial breakdown. This may, for example, include offering mediation, but it was not found to be reasonable for the company to do so in this case. The tribunal was satisfied from the evidence that the employer had been genuine in its efforts to rebuild trust and keep the individual employed, over a prolonged period.
It will generally be a high-risk strategy for employers to terminate the employment of an individual due to a breakdown in the working relationship without giving the employee prior written warning, or without offering them any right of appeal. Employers will need to show a tribunal very persuasive evidence that they had no alternative to dismissal, meaning that documenting the events leading to the dismissal will be crucial.
-
Liz Stevens
Services
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2024.