Considering alternatives to dismissal

In Alexis v Westminster Drug Project, the Employment Appeal Tribunal (EAT) looked at relevant factors for an employer when considering whether or not to dismiss an employee where there has been an irretrievable breakdown in the working relationship.

Background

With normal unfair dismissal (employees with over 2 years service) dismissal can be unfair if the employer has not acted reasonably in all the circumstances when dismissing and there is substantial case law to the effect that matters such as not considering the employee’s past record, length of service, or not looking at alternatives to dismissal can render any dismissal unfair in certain circumstances.  In this case the EAT has confirmed that where the reason for dismissal is irretrievable breakdown in the working relationship, the duties on the employer are likely to be less than in some other types of dismissal.

Facts

The Claimant was involved in a redundancy situation.  She was unsuccessful in a process whereby she and other employees had to undergo a competitive interview to apply for the available roles, however the Claimant had dyslexia and thought she should have been given questions 24 hours in advance of her colleagues.  She subsequently raised a grievance and then appealed the same and then pursued an appeal and was involved in many emails subsequently to the Chairman of the Respondent.

Ultimately the Respondent employer considered that the working relationship had broken down and dismissed on that basis.   The Claimant brought a Tribunal claim for unfair dismissal and lost, so the Claimant appealed arguing that there was an error in law in that the Tribunal had not given sufficient weight in its decision to her length of service and that the employer had not properly considered all alternatives to dismissal.

As highlighted above, this can be a difficult area for employers and considering alternatives to dismissal and taking into account length of service is frequently a wise move for an employer looking into dismissal particularly if someone has over 2 years service.  Here, however, the EAT made clear that, once the Respondent had reasonable grounds for concluding that the employment relationship had broken down and trust and confidence had been broken, dismissal was the only option and in such a scenario the employer was not required to consider alternative employment nor, indeed, length of service.

Comment   

The case is good news for employers and a reminder that trust and confidence is such an important implied term in the employment relationship that once it has been lost (provided a Tribunal finds that is on reasonable grounds) then it is unlikely that the employment relationship is salvageable through means other than dismissal.  Employers can defend claims on similar facts on that basis.