063 Dismissing without Following Procedures

Thu, 11/19 2:11PM • 11:44

Hello, I'm barrister Daniel Barnett and welcome to Episode 63 of employment law matters on
dismissing without following procedures. In this episode I'm talking about a very recent employment
Appeal Tribunal case called Linda Gallacher v Abellio Scotrail Limited.

Now this is a case where the claimant, Linda Gallacher, was dismissed without any procedure being
followed because of a breakdown in relations between her and her manager, and the dismissal
unusually, was held to be fair. I'm going to take you through the facts of the case. The employment
tribunals reasoning, and the judgment of Choudhury J., the President of the employment Appeal
Tribunal.

CUT THIS BIT: welcome to employment law matters with barrister Daniel Barnett.

00:54
So here are the facts. The claimant, Linda Gallacher, worked as the head of customer delivery and
standards for Abellio Scotrail LTD. If you google her, you'll find one of those pictures taken by a staff to
photographer as she strides towards the Glasgow Employment Tribunal looking angry and purposeful.
Now her LinkedIn profile says she was responsible for the overall Scotrail customer service strategy,
continually reviewing and improving processes and policies in response to reactive and proactive
customer insight.

Ukkhh..!
Who writes like that? Her boss at the time was Jacqueline Taggart, the Head of Customer Relations,
and Abellio Scotrail, as you know, operates the rail franchise in Scotland. We know from their website,
they're giving you quicker, more comfortable and better value journeys from door to door.

The claimant and her boss, Jacqueline Taggart, got on well initially, but then Ms Taggart heard rumors
that the claimant had made negative comments about her behind her back. There are a couple of
requests that she made for a pay raise and she eventually got one but it took longer than she would
have liked. And in early 2016 Ms Taggart, the manager decided that all her reports including the
claimant Ms Gallacher should participate in the on-call rotor. Now, the decision doesn't actually tell us
what that meant. But we do know, the claimant wasn't happy about it and became increasingly resistant
to being managed by Ms Taggart. So by October 2016, the end of the year. The claimant made it clear
in her appraisal that she was looking for a different role within Scotrail.

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02:36
In mid November, she went off sick. By this stage, Ms Taggart, the manager was concerned that the
claimant was doing a job she didn't enjoy, and that their working relationship was deteriorating. For her
return from sick leave of absence in the new year. There was a meeting to discuss the phase return to
work and low the tribunal found Ms Taggart was being supportive. Ms Gallagher the claimant didn't
think so. And she sent an email disputing Ms Taggart’s account of that meeting.
03:09
In March, a couple of months after she came back from sick leave, they held a meeting where they
agreed to disagree over the recruitment of somebody in the Claimant’s team, and they discussed the
fact their relationship had become difficult. Jacqueline Taggart, the manager, thought that Ms Gallagher
the claimant was unfairly seeking to attribute all the blame for the deteriorating relationship to her to Ms
Taggart, and she was a bit taken aback by that. Meanwhile, Ms Taggart, the manager began to receive
complaints from Ms Gallagher's direct reports about Ms Gallagher's ability to provide support and her
ability to delegate. So the tension is ramping up. Now at this time, Scotrail was encountering financial
difficulties. And Ms Taggart, the manager was under a lot of pressure. She spoke with the HR director
and the head of HR. And she said she felt there needed to be an immediate change and that the
claimant should leave the customer services Directorate. They agreed that both the HR director and the
head of HR agreed with that, and they looked for alternative posts for the claimant, but there weren't
any. And that being the case, they decided to dismiss her because of the loss of trust and confidence,
not because the decision was already taken between the three of them. And because the matter wasn't
one of performance or conduct. The head of HR took the view there wasn't any point having a formal
process because he couldn't see a formal dismissal process making any difference. Remember, the
claimant had been unhappy in her role for a while and she'd been looking for an internal transfer for a
while. It was pretty clear there weren't any other jobs for her to go into.

04:54
As a result, she was called into a meeting which she thought was an appraisal meeting. She was
misled about that and dismissed.

05:00
She agreed in correspondence shortly after that, that her relationship with Jacqueline Taggart had
broken down. So that wasn't an issue. She accepted, there'd been a full breakdown of the relationship.
And there we have it. We had a dismissal without any disciplinary process, or indeed, any process. The
claimant was called into a meeting that she was told was about something else, after nearly 10 years’
service and dismissed without any warning. Unsurprisingly, she brought an unfair dismissal claim. She
also claimed disability discrimination and sex discrimination and age discrimination. But that's not
something we need to worry about those claims were dismissed, and they added little to miss
Gallagher's case.

05:47
What did the employment tribunal decide? Well, the employment tribunal didn't think Ms Gallagher was
an impressive witness. They described her as ‘truculent’, and they felt she lacked insight into the

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situation. And it held that although the underlying issues could have been characterized as
performance or conduct related, the principal reason for dismissal, we're always looking at the reason
or the principal reason. In an unfair dismissal case, the principal reason for dismissal was the
breakdown in trust and confidence. And that was properly characterised as some other substantial
reason of a kind to justify dismissal.

Now, that meant the Acas Code of Practice didn't apply, because the Acas Code of Practice applies to
dismissal for conduct and performance situations, but not to s. o. s are dismissals. And if the Code of
Practice doesn't apply strictly, there can't be a breach of the code of practice, which means it's going to
be easier for the employer to justify the dismissal is fair, despite the lack of procedure. Now, the tribunal
went on to hold that the lack of any formal procedure would often lead a tribunal to conclude that
dismissal fell outside the range of reasonable responses. That's obviously right. But it wasn't for the
tribunal to substitute its own view for that of the employer. And in the circumstances here, set the
tribunal. The respondent, the employer was entitled to consider that the absence of a formal process
wouldn't make a difference. And accordingly, the dismissal was fair.

What did the Employment Appeal Tribunal say? Well, the ET noted that the tribunal had stated the law
correctly, and said that the correct self-direction and law was properly applied to the facts of the case. It
pointed out that in most cases, the failure to have any procedure and especially the failure to allow an
appeal, in a situation where there was no formal procedure would lead to a finding that the dismissal
was unfair.

A proper procedure set the Employment Appeal Tribunal is fundamental to notions of natural justice
and fairness. And it's going to be a really rare case, where an employer is acting within the band of
reasonable responses, if it doesn't have any procedure at all, but said that at but it's well established
that there may be cases albeit rare, where procedures can be dispensed with, because they're
reasonably considered to be futile in the circumstances. And that comes from the very well-known case
of Polkey v Dayton Servies, an old decision of the House of Lords.

Now, although it's not listed in one place, as you go through the judgments, you can extract the
important factors, all of which cumulatively, not individually, cumulatively meant that this was one of
those rare cases, I'm going to tell you five. Number one, the claimant was a senior manager who's
continued good working relationship with her manager was critical during a difficult financial period for
the respondent. So things might have been very different if the claimant was more junior. Number two,
the claimant recognized that there was a breakdown in relations, and she wasn't inclined to retrieve the
situation. And bear in mind, of course, the tribunal had found she lacked insight into the situation, and
that she was truculent factor three that been complaints about the claimant from her direct reports. So
the problems went down the hierarchy as well as up.

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Number four, the employer actively considered whether a formal process would serve any useful
purpose and decide that it wouldn't so distinguish the situation where the employer just doesn't think
about following a process and is trying to argue retrospectively that it wouldn't have made a difference.
There's a big difference between that and the situation here, where the employer took the view
reasonably as the tribunal found that a process would be futile. And five, the respondent looked for
alternative roles for the claimant. But there weren't any.

10:11
The president of the Employment Appeal Tribunal, Choudhury J., did say that any contention by an
employer that following a procedure would be futile should be approached with caution. And that's the
point I echo. In 25 years of practice. I've only been involved in a tiny handful of cases, where an
employer has won the argument that the dismissal was fair, despite the complete absence of any
procedure, although Having said that, very few cases actually get near a tribunal if there's no
procedure, because there'll be regarded as high risk and will generally get settled. The good news,
according to LinkedIn, is that Ms Gallagher found a new job pretty quickly, and She now works for
optimal health as a senior account manager

RAYVEE – CUT THIS LAST BIT – I DON’T WANT IT

such Daniel Barnett for employment tribunal advice and representation. And that's it. Thank you so
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