A recent ruling by the Employment Appeal Tribunal (the EAT) in the case of Matthews v. CGI IT UK Ltd highlights a rare exception to the idea that an employer must carry out all the usual procedures for a dismissal to be fair. It demonstrated that in certain exceptional circumstances, an employer may fairly terminate an employee’s contract without issuing a formal written warning or providing a right to appeal. The EAT upheld the Employment Tribunal’s decision to reject claims of unfair dismissal and victimisation against CGI IT UK Ltd (CGI) despite the absence of a formal procedure in the dismissal of Mr. Guy Matthews (the Claimant).
Case facts
The Claimant, a Director/Consulting Expert on 5G technology, was employed by CGI in a high-level position. After developing COVID-19 and suffering from its long-term effects, the Claimant was signed off sick and, during this time off, CGI made the strategic decision to discontinue its 5G projects, leading to a redundancy process that placed the Claimant’s role at risk. The Claimant declined to participate in consultation meetings, due to his ongoing illness. The situation was further complicated when the Claimant raised a grievance after a colleague’s redundancy. This grievance was partially upheld on appeal, but it did not result in any action against his line manager, Mr. Evans, whom he accused of scapegoating him. CGI made attempts to restart the redundancy process, but these were eventually abandoned due to the deteriorating relationship.
Upon starting a phased return to work, the Claimant was given options for his continued employment, including staying in his current team or finding a role elsewhere in the company. He rejected these options and set conditions for his return that CGI found unacceptable. The Claimant also refused coaching to improve his relationship with Mr. Evans and continued to express his lack of trust in CGI, threatening further grievances and legal action. CGI created a new role for the Claimant in a different team which he also refused, maintaining that both options presented to him were untenable. Ms. McGeehan, the President of CGI Operations (UK and Australia), concluded that the new role was the only viable solution and communicated this decision to the Claimant. He then claimed that accepting the new role would amount to a demotion and constructive dismissal. Shortly thereafter, Ms. McGeehan determined that the employment relationship had irretrievably broken down and terminated the Claimant’s employment, without a written warning, offering pay in lieu of notice but no right of appeal.
The Claimant subsequently brought tribunal proceedings alleging automatically unfair dismissal for making a protected disclosure, ordinary unfair dismissal and failure to make reasonable adjustments, among other claims. The tribunal held that CGI had a reasonable belief at the time the decision to dismiss was taken that the relationship of trust and confidence between the parties had broken down irretrievably and that they had made genuine efforts to resolve the situation, leaving no alternative but dismissal. Given that finding, the tribunal determined that there was no proper basis to draw inferences that other impermissible reasons operated on the mind of Ms. McGeehan and the claims of automatically unfair dismissal and victimisation were dismissed. The tribunal also concluded that this was one of the rare cases where the decision to dismiss without a prior warning and without offering the claimant the opportunity to appeal was within the range of reasonable responses. The claim of ordinary unfair dismissal was accordingly dismissed. The Claimant appealed on multiple grounds, primarily challenging the decision that the dismissal was not unfair.
The EAT decision
The EAT upheld the tribunal’s decision, dismissing the appeal on all grounds. The EAT referred to the landmark case of Polkey v. AE Dayton Services Ltd [1988] (Polkey), which addresses the fairness of a dismissal where the employer has failed to follow proper procedural steps. The case acknowledges that there are exceptional circumstances where an employer’s failure to follow procedure may not amount to an unfair dismissal if it can be shown that the procedural steps would have made no difference to the outcome. The EAT found that CGI had made significant efforts to accommodate the Claimant and rebuild trust, but these were consistently rejected. Given the Claimant’s position and refusal of all solutions, including a newly created role, the EAT concluded that this situation fell within the exception set out in Polkey as any further procedural steps (including mediation) would have been futile.
The EAT also referred to the principles established in Turner v. Vestric Ltd [1980] (Turner), and reiterated that where a working relationship has broken down, an employer is not required to take “all reasonable steps” prior to dismissal. It did indicate however that where the employer is to blame for the breakdown, that employer should bear a heightened responsibility to attempt to repair the relationship. Coupled with the Polkey principle, Turner underscores the significance of procedural fairness and the imperative for employers to really try to explore avenues for reconciliation. In this instance, the only blame the EAT could attribute to CGI was in relation to the redundancy process where it did not consider the Claimant’s high level of experience and skills. Otherwise, CGI was considered to have been genuine in its efforts to keep the Claimant employed. For example, the EAT noted that the seniority of Ms. McGeehan, who made the final decision to terminate the Claimant’s employment, underscored the gravity and deliberateness of CGI’s decision-making process.
Comment
Rulings in cases like Matthews v. CGI IT UK Ltd are rare but serve as a useful reminder that in exceptional circumstances it is possible for an employer to fairly dismiss an employee without following the standard procedure. The key takeaway is that the fairness of a dismissal in which recognised procedures have not been followed must be assessed from the employer’s perspective at the time of the decision. The employer’s genuine belief in the futility of the procedure, supported by the claimant’s conduct, can justify a direct dismissal. The case also reaffirms the principle that an employer’s contribution to the breakdown of the relationship may require them to take additional steps to repair it before a dismissal is considered fair. However, if the employer has made reasonable efforts to mend the relationship and the employee remains uncooperative, dismissal may be justified.
The EAT emphasised the exceptional nature of this case, highlighting the particularly extreme facts at hand. Employers should be mindful that the likelihood of a similar outcome is highly dependent on the specific details of each individual case. Employers must approach such situations with caution and be aware that the burden of proof to justify any departure from usual procedure is substantial and not easily met.
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