The recent Employment Appeal Tribunal (EAT) case of Linda Gallica and Abellio ScotRail Limited provides an interesting examination of when an employer can dismiss an employee without following disciplinary procedures. This article will analyze the key facts, employment tribunal reasoning, and EAT judgment to determine what rare circumstances permit dismissal without process.
In unfair dismissal claims, following a fair disciplinary process is essential. However, the EAT confirmed in Linda Gallica v Abellio ScotRail Limited that in exceptional cases, dismissal without any procedure can still be fair. Let’s review this case to understand when this may apply.
Linda Gallica was the Head of Customer Delivery and Standards at Abellio ScotRail Limited. She initially had a good working relationship with her manager Jacqueline Taggart, the Head of Customer Relations.
However, issues emerged when Taggart heard rumors Gallica made negative comments about her. Gallica was also unhappy with how long it took to get a pay rise. Taggart then decided all her reports, including Gallica, should participate in an on-call rota. Gallica became increasingly resistant to Taggart’s management.
By October 2016, Gallica wanted a new ScotRail role. In mid-November, she went on sick leave. Taggart worried their relationship was deteriorating. For Gallica’s return in the New Year, a phased return meeting took place. Although Taggart tried to be supportive, Gallica disputed Taggart’s account in an email.
In March, they disagreed over a team recruitment decision and acknowledged their difficult relationship. Taggart felt Gallica unfairly attributed all blame to her. Taggart also received complaints about Gallica from direct reports.
With ScotRail facing financial problems, Taggart was under great pressure. She told HR Gallica should leave customer services. They agreed and looked for alternative roles without success. With no role available, they dismissed Gallica for loss of trust and confidence.
Gallica was called to a meeting supposedly for her appraisal and dismissed without warning after nearly 10 years’ service.
The Employment Tribunal’s Reasoning
The Tribunal found Gallica an unimpressive witness, describing her as “truculent” and lacking insight. It held the principal dismissal reason was the trust/confidence breakdown, not conduct/performance issues.
This meant the Acas Code did not apply as it only covers conduct/performance dismissals. Without the Code applying, the lack of procedure was easier to justify as fair.
The Tribunal acknowledged no procedure often leads to a dismissal being unreasonable. However, it was not for the Tribunal to substitute its own view for the employer’s. In the circumstances, the employer was entitled to consider a formal process futile, making the dismissal fair.
The Employment Appeal Tribunal’s Judgment
The EAT held the Tribunal correctly stated and applied the law. It reiterated failure to have any procedure or appeal would usually mean a dismissal is unfair. Proper processes are fundamental to natural justice.
However, rarely a procedure may be reasonably considered futile. The EAT extracted five cumulative factors making this an exceptional case:
- Gallica was a senior manager where a good relationship with her manager was critical during financial difficulties.
- Gallica recognized the relationship breakdown and was not inclined to improve it.
- There were complaints about Gallica from direct reports.
- The employer actively considered a formal process would not be useful.
- No alternative role was available for Gallica.
The EAT cautioned any futility arguments must be approached cautiously. Yet here, the complete lack of procedure was fair in the circumstances.
This case illustrates how exceptional the circumstances must be to justify dismissal without any disciplinary process. Key learnings include:
- Fair procedures are fundamentally important and required in nearly all dismissals.
- Formal processes can only be dispensed with if reasonably considered futile.
- Cumulative, not individual, factors must make a process clearly pointless.
- Strong evidence is needed proving the employee won’t engage constructively.
- The situation must make alternative solutions like redeployment impossible.
- Arguments dismissing process as futile should be treated very cautiously.
- Even without process, the dismissal must still be reasonable based on the circumstances.
The EAT endorsed dismissal without procedure in Linda Gallica as fair in exceptionally rare circumstances. However, employers should be extremely wary of trying to justify lack of process and expect intense fairness scrutiny. This case highlights the heavy burden on employers claiming futility, reiterating the indispensability of fair procedures in nearly all dismissals.