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EAT gives guidance on dismissing employees fairly when the employment relationship has broken down
Employees with over two years’ service have the right not to be unfairly dismissed. This means that if an employer wants to end an employee’s employment fairly once they have two years’ service, then they need to be able to point to a ‘fair reason’ and show that they acted reasonably in relying on that reason to dismiss.
The law recognises five potentially fair reasons for dismissal. One of these is ‘some other substantial reason’, often referred to as ‘SOSR’. It can be applied to many different situations. One of these can be where the employment relationship has irretrievably broken down.
This happened in the recent case of Alexis v Westminster Drug Project. The Claimant’s role was the subject of a restructuring process whereby three posts would be replaced with two new posts. The Claimant applied for one of the two new posts and was unsuccessful at interview. She had dyslexia and raised a grievance about the interview process, saying that she should have been provided with the questions 24 hours in advance. She rejected the outcome of the grievance and appealed. She also rejected the outcome of the appeal and wrote numerous emails to the Respondent about it. She was called to a meeting to discuss whether her continued employment was tenable. The decision maker decided that the relationship had irretrievably broken down. He dismissed her with notice for SOSR. The Claimant brought a claim of unfair dismissal.
The employment tribunal dismissed her claim. The Claimant appealed, contending that the tribunal had not given sufficient consideration to her length of service or alternatives to dismissal.
The Employment Appeal Tribunal, dismissing the appeal, held:
- The Respondent had reasonable grounds for concluding that the relationship had irretrievably broken down.
- Once trust and confidence had irretrievably broken down, the only option was dismissal, and the Respondent was not required to consider alternatives.
- On the length of service point, the EAT held that an employer can only be obliged to consider length of service if it is relevant to the decision to dismiss. The decision to dismiss in this case was based on an irretrievable breakdown in the employment relationship. The Claimant’s length of service was therefore irrelevant.
This case is a good example of a situation where the employer carried out an internal review of the relationship between the parties and came to a clear evidenced decision that it had reached the point of no return. The EAT’s decision makes it clear that, where matters have reached this point, the employer is not required to artificially jump through hoops of looking at ways that dismissal might be avoided or taking account of length of service as they might be advised to do in, for example, a capability or conduct dismissal.