In this case, the EAT held that there was no requirement for an employer to consider an employee’s length of service or the possibility of alternative sanctions when dismissing for ‘some other substantial reason’ (SOSR) where the relationship between the parties had irretrievably broken down.
Facts
Ms Alexis worked as a receptionist/administrator at the Westminster Drug Project (WDP). In August 2018, she informed WDP that she had dyslexia. Various adjustments were recommended in a report by Dyslexia Assessment and Consultancy (DAC), including that Ms Alexis should receive 25% additional time in any future exams or interviews.
In autumn 2020, WDP commenced a restructuring exercise in which the three existing receptionist/administrator posts would be removed and replaced with two new posts – one receptionist and one administrator. Since all three current receptionist/administrators were interested in the two new roles, WDP decided to use a competitive interview process to select the best candidate for each role.
The chair of the interview panel was aware of Ms Alexis’ dyslexia and emailed her the interview questions 15 minutes before the start of each interview, although she did not tell Ms Alexis she had done so. Ms Alexis did not see the questions in advance of the first interview, and only saw the questions for the second interview ten minutes in advance. She scored poorly compared to the other two candidates and WDP informed her on 9 October 2020 that her application had not been successful for either role.
Ms Alexis raised a grievance about the interview process, contending that WDP should have given her the questions 24 hours in advance. On 16 December 2020, WDP upheld her grievance and offered her the chance to re-interview for both roles, albeit with the questions provided 15 minutes, rather than 24 hours, in advance. Ms Alexis appealed. The appeal outcome was provided on 15 January 2021. It proposed an extension of time for the interviews and provision of question headings and a summary of competencies 24 hours in advance.
Within a few hours of receiving the appeal outcome, Ms Alexis sent six emails complaining about it. WDP replied on 20 January 2021, committing to ensuring that any new interview would be fair, offering Ms Alexis several options for adjustments to the process, and commenting that it appeared from her communications that she lacked trust in the grievance procedure. On 22 January 2021, Ms Alexis responded with a five page letter expressing her dissatisfaction with the options presented and contending that WDP’s refusal to provide questions 24 hours in advance amounted to discrimination.
WDP then invited Ms Alexis to a meeting with an HR consultant on 18 February 2021 to discuss whether her continued employment was tenable, taking into account her perceived unmanageability, her inability to accept the grievance outcome, the unsustainable demand her actions were placing on HR and management, and the apparent breakdown of trust and confidence between her and WDP. Ms Alexis remained intransigent at the meeting, and she was dismissed with notice on 23 February 2021. Her internal appeal against dismissal was rejected.
An employment tribunal found that WDP genuinely and reasonably believed that there had been an irretrievable breakdown in its relationship with Ms Alexis, held a reasonable enquiry and gave Ms Alexis an opportunity to put forward her arguments. The tribunal accordingly held that the dismissal was fair for SOSR.
Ms Alexis appealed, contending that no sufficient consideration was given to her length of service, or to the alternative outcome of a warning.
The EAT dismissed the appeal. With regard to length of service, the EAT held that an employer can only be obliged to consider this if it is relevant to the decision to dismiss. In this case, WDP’s decision was based on its reasonable belief that trust and confidence had irretrievably broken down, and Ms Alexis’ length of service was therefore not relevant. As for the possibility of alternative sanctions, the dismissal letter showed that WDP had in fact considered this. However, it was clear that trust and confidence had irretrievably broken down, such that the only option was dismissal.
What does this mean for employers?
Dealing with a perpetually aggrieved employee places significant demands on HR and management time and resources, but employers are often wary of dismissing given the likelihood that an unfair dismissal claim may follow. This case offers welcome reassurance for employers as it shows that, provided the employer has a genuine and reasonable belief that its relationship with the employee has irretrievably broken down, has set out its concerns clearly to the employee and has given them the opportunity to respond, it is possible to dismiss fairly for SOSR.
