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Is a dismissal, without any process, necessarily unfair?

Sign saying 'You're fired'

Is a dismissal, without any process, necessarily unfair?

Ask any HR person and they will roll their eyes, tut, and point you to the rule book, ACAS and CIPD. And they’d be, occasionally, wrong.

Mathews vs CGI IT UK Ltd

It is usually the case that a dismissal not accompanied by a fair process will be ruled unfair. But not always. Consider the recent case of Mathews vs CGI IT UK Ltd.

Mr Mathews was a Director of CGI IT UK Ltd. Somewhere, something went wrong in the employment relationship, and CGI decided to place Mr Mathews at risk of redundancy in what was not, it seems, a true redundancy scenario. Mr Mathews submitted a grievance, and CGI abandoned its plans to make him redundant.

In his grievance Mr Mathews complained of undermining treatment by his boss, but the investigation didn’t uphold those particular complaints. By now on sick leave, CGI attempted to discuss a return to work, and even created a new role for him in the hope of addressing the situation, but Mr Mathews was having none of it, and in meetings he was confrontational, and threatened more grievances & legal action.

CGI’s most senior leadership took a close look at Mr Mathew’s case and decided that, by that stage, all attempts to rebuild the relationship with him had failed, and further attempts would be futile. So, he was dismissed – no hearing, no appeal, just a letter confirming the end of his employment on the basis of an irreparable working relationship.

Unhappy, Mr Mathews brought his case to an employment tribunal, which sadly for him agreed with his employer. The tribunal concluded that had CGI followed the normal protocol of giving a prior warning, and then allowing an appeal, Mr Mathews still would have been dismissed.

Polkey vs AE Dayton Services – the legal precedent

This ‘would have been dismissed anyway’ scenario, of a dismissal being found fair although there had been no formal procedure, was first established in a famous case from the 1980s, Polkey v AE Dayton Services.

Polkey is often referred to by tribunals to look at cases where a fair procedure had not been followed, but had it have been, the employee’s dismissal would have been fair.

Undaunted Mr Mathews appealed his case to the Employment Appeal Tribunal, but he didn’t get any joy there either, as it upheld the tribunal’s decision to dismiss his claim of unfair dismissal (and other claims he bought against CGI).

Any CIPD student should be able to tell you that while we have (currently anyway, though a Labour government may change this) 5 potentially fair reasons for dismissal in the UK, a dismissal will only actually be fair if a fair procedure (usually measured against adherence to ACAS codes) is followed…..except in this case, and others where the Polkey principles have been applied to the same effect.

Cases like Matthews vs CGI IT UK Ltd keep employment law interesting, and remind us that while fair processes are usually essential, every case needs to be considered on its facts.

I wonder how many HR Advisors would have told CGI to have gone through time consuming pointless processes, or to tie Mr Mathews into an expensive settlement agreement. In the end CGI took an uncomplicated path to dismissal, a decisive route to an inevitable end point.

What can employers and HR practitioners learn from this case?

This case confirms some important principles:

  • There is a duty on employees to cooperate with employer’s attempts to return them to work, and a shared duty to make these arrangements work.
  • When considering dismissing an employee for a breakdown in working relationships, employers should consider whether genuine and reasonable efforts have been made to repair any issues before dismissing.
  • If, on the facts, an employee’s behaviour reasonably indicates that the working relationship has irretrievably broken down, employers may question whether warnings or appeals would have any realistic chance of success, and if not, whether they are a prudent use of manager’s time.

This case is to be considered with extreme caution, as the vast majority of dismissals will need to be preceded by a fair and thorough procedure…..but it is an interesting exception nonetheless.

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