This case law update article provides a digestible account of recent Employment Tribunal outcomes; where you get the background details on the case, the rationale behind the judgements and takeaway learning points.
An Exceptional Fair Dismissal
M Gallacher vs Abellio Scotrail Ltd
A fair dismissal requires a proper procedure to be followed, and the decision to dismiss to fall within the band of reasonable responses. However, in case Gallacher vs Abellio Scotrail Ltd, an exception was made given the very unusual and rare circumstances.
Gallacher was employed as a senior manager and her relationship with her manager turned sour around 2014. Over the next three years further issues arose leading to the relationship worsening top the point that Gallacher had a period of sickness in 2017. Upon her return, an appraisal meeting took place where business challenges and pressures were discussed and a phased return to work was agreed as support. This meeting was summarised afterwards by the Manager however Gallacher responded to say it was not an accurate reflection of the discussion and tensions between both parties reached their peak. At the same time the business was entering a critical period having posted significant trading losses. Given this, the business required Gallacher, and other senior managers to be relied upon for taking forward the businesses at such an uncertain time. Abellio Scotrail concluded that Gallacher’s role in the business was pivotal, but there was now a breakdown in trust and confidence which was causing a serious disruption the business. Given the business-critical time it was deemed that a change in leadership was needed and a decision was taken to dismiss Gallacher. Despite Abellio Scotrail knowing there were clear disciplinary and performance procedures in place, it was not considered that a matter of either conduct or performance, where following a process would help manage the situation. Gallacher was therefore dismissed. There was no procedure followed, or any forewarning given, nor was she offered the right of appeal.
Surprisingly, the tribunal found the dismissal to be considered a fair response to the circumstances and went so far to hold the view that using a procedure would have made the situation worse. The Employment Appeals Tribunal also agreed with the original finding, holding the view that to have carried out a procedure in this case would have been futile given that the working relationship had broken down on both sides.
Whilst this is an interesting finding; it should be read with caution. It is only for exceptional, rare cases where the circumstances of the case are such that warrants a dismissal without any due process. We would always recommend you seek HR advice on cases involving senior members of your team to ensure the approach taken is fair and reasonable in the circumstances.
Unfair and Discriminatory Redundancy Process
Mrs Larkin vs Liz Earle Beauty Co Ltd
In case Mrs Larkin vs Liz Earle Beauty, the tribunal found that Mrs Larkin’s redundancy dismissal was unfair and discriminatory on the grounds of pregnancy and maternity. She was awarded £17,000.
Mrs Larkin informed her employer in January 2018 that she was pregnant, at the same time as the company took on a consultant (Ms Slaymaker) to advise on their high street and online sales strategy. However, in February, Mrs Larkin’s manager told Ms Slaymaker that Mrs Larkin was pregnant, and it is from this point that Mrs Larkin felt Ms Slaymaker lost interest in helping her to progress in the company. No further meetings were held about her progression.
In March, Ms Slaymaker devised a new structure to address the sales strategy and identified roles at risk of redundancy. Mrs Larkin was put at risk of redundancy but not until May. There was then a month delay in Mrs Larkin’s first consultation meeting taking place. A vacant role also became available between the structure being devised and Mrs Larkin being told that she was at risk of redundancy however it was given to an external recruit, and somebody who Ms Slaymaker had previously worked with.
Mrs Larkin argued her consultation was rushed, that the available role would have been a suitable alternative employment for which she should have been offered and that the decision to make her redundant was linked to her pregnancy. She explained to the tribunal that Ms Slaymaker commented at the end of one of the consultation meetings that Mrs Larkin would enjoy her time being a mother, told her not to get stressed about the redundancy situation and to put her baby first.
The tribunal believed that the external recruit was a preferred candidate to Ms Slaymaker due to the prior relationship, and that the role would have been a suitable alternative to Mrs Larkin, thus making the process unfair. The tribunal also held that following the pregnancy comments at the end of a consultation meeting, this was indicative of Ms Slaymaker’s thoughts about Mrs Larkin and concluded therefore the pregnancy had factored into the company’s decision to make Mrs Larkin redundant.
This case is a reminder of the need to act promptly when managing redundancy and to not bring delays into the process. Recruitment should be paused or put on hold, whilst a redundancy process is going ahead, to enable at risk employees the opportunity to explore suitable/alternative employment. It is also a reminder of the need to be careful in discussions that take place that are not relevant to the redundancy. The comments and observations made by Mrs Slaymaker during a formal process could not be separated and led to the tribunal believing that it was relevant to the decision making.
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