The Employment Appeal Tribunal (EAT) has held that length of service and alternatives to dismissal were not relevant considerations in a case where the employee was dismissed due to the irretrievable breakdown of the employment relationship.
The recent case of Alexis v. Westminster Drug Project reinforces the principle that trust and confidence is foundational to any employment relationship. Where that relationship breaks down irretrievably, dismissal may, in some circumstances, be the only viable course of action, regardless of an employee’s tenure or the possibility of alternative measures.
Background
Ms Alexis (the Claimant) was employed by Westminster Drug Project (the Project). The Claimant is dyslexic and the Project was aware of recommendations made during a previously sought assessment in respect of the Claimant’s dyslexia, including that she should receive additional time in exams or interviews.
In 2020, as a result of a restructuring process, the Project decided to replace three existing posts with two new roles, requiring the current post-holders (which included the Claimant) to undergo a competitive interview process where standard interview questions were posed to all candidates. The Project, being aware of the Claimant’s dyslexia, sent her the interview questions 15 minutes in advance of the first of the interviews.
The Claimant scored poorly and was ultimately unsuccessful in both her interviews. She subsequently raised a grievance, asserting that the Project had not made reasonable accommodations, as the interview questions were not provided far enough in advance. She claimed she only received interview questions in advance of the second of the interviews and that in any event she should have received the questions for both interviews 24 hours beforehand. The Project put the restructuring process on hold whilst it considered the Claimant’s grievance.
The decision-maker partially upheld her grievance. Whilst the decision-maker considered that her receiving the interview questions 15 minutes in advance was reasonable, because the Claimant was not told that she would be receiving the interview questions in advance, they upheld her grievance and the Project offered the Claimant fresh interviews for both roles.
The Claimant appealed that decision despite it being largely in her favour. The appeal outcome was that the Project would re-interview the Claimant with a new set of questions, the headings of which it would send her 24 hours in advance, along with a summary of competencies.
After the Project communicated the appeal decision to her, the Claimant escalated the matter by sending numerous emails to decision-makers, including the Project’s chair. The Claimant clearly could not accept the grievance or appeal outcome, which heightened tensions between the parties. Concerned about the tone and frequency of these communications, the Project called a meeting to discuss whether the employment relationship could continue. Following this meeting, the Project concluded that the relationship had irretrievably broken down and it dismissed the Claimant for “some other substantial reason” with notice. The Claimant brought a claim of unfair dismissal.
Employment Tribunal decision
The Employment Tribunal (ET) found the dismissal to be fair. It held that the Project had reasonable grounds to believe the employment relationship had broken down irreparably, primarily due to the Claimant’s refusal to accept grievance outcomes and her disruptive communications. The ET also noted that the Project had considered alternatives to dismissal but found them unsuitable in the circumstances.
Employment Appeal Tribunal decision
The Claimant appealed to the EAT on two grounds: first, that the Project had failed to adequately consider her length of service when deciding to dismiss her and, second, that the Project had not sufficiently explored alternatives to dismissal. However, the EAT dismissed the appeal, holding that the Project had reasonable grounds for its decision.
The EAT clarified that, while length of service can be relevant in certain dismissal scenarios, it is not a mandatory consideration in every case. In this instance, the dismissal was based on an irretrievable breakdown in trust and confidence, and therefore her length of service was irrelevant. The EAT also found that the Project had considered other measures but reasonably concluded that they would not resolve the issues. It deemed mediation or redeployment were impractical as the breakdown in trust rendered continued employment unsustainable.
Comment
This is an interesting but fact-specific case, which should be considered with caution. Whilst the Project had presented several options to the Claimant to enable a fair restructuring process to continue, the Claimant continued to reject them, leaving them with no workable way forward. As a result, the ET and EAT agreed that the Project was reasonable in dismissing her due to the irretrievable breakdown in employment relationship. Whilst length of service and the consideration of alternatives to dismissal are important considerations when dealing with many exits, there is a question mark over the relevance and practicalities of those considerations if the employment relationship has already broken down.
It is fairly rare to dismiss an employee for an irretrievable breakdown in the employment relationship and it tends to occur only in extreme cases. If you are considering a dismissal in this type of situation, it is important that you can evidence that you followed a fair and reasonable process. What that entails will vary from case to case and we suggest taking advice before going down this route.
