Can a dismissal without prior warning or a right of appeal ever be fair? In the recent case of Matthews v CGI IT UK Ltd [2024] EAT 38, the Employment Appeal Tribunal (EAT) grappled with this question. The answer, a nuanced yes, is critical for employers to understand, not least because it reinforces the importance of having robust policies and procedures in place.
The Case
The dismissal in question came after a prolonged process during which the employer genuinely tried to find a reasonable solution that would enable the employee to continue in his employment. However, a deadlock was reached and the claimant was dismissed due to, what the employer perceived as, an irretrievable breakdown in the working relationship. Notably, he was dismissed without being given a written warning and was not offered a right to appeal. When his unfair dismissal claim was rejected by the Employment Tribunal (ET), he appealed, arguing that the lack of procedure rendered his dismissal unfair.
The claimant argued the dismissal was unfair due to a lack of proper procedure. He also claimed the dismissal amounted to victimisation for his protected acts and that the ET had failed to properly apply the burden of proof provisions.
The Judgement
However, the EAT upheld the ET’s decision. They concluded that while dismissal without warning or appeal would usually be unfair, this was one of those rare cases where it could be justified. The ET was entitled to find that further procedure would have been futile given the complete breakdown in trust and confidence:
“The ET was entitled to find that this was one of the rare cases referred to in Polkey1 where a dismissal may be fair although there has been no formal procedure. The ET did not impermissibly consider what would have happened if a warning had been given or an appeal allowed and they did not apply the wrong test of whether either would be likely to have made a difference.”
Matthews v CGI IT UK Ltd [2024] EAT 38
But before managers and employers start thinking they can dispense with their formal procedure, it’s crucial to note the specific context here. The ET found that the respondent had made genuine efforts to rebuild the relationship, and it was the claimant’s uncompromising stance that made dismissal inevitable. The lack of procedure was fair only because the ET was satisfied any warning or appeal would have been useless in the circumstances.
This case is a reminder that while procedure is important, it is not a box-ticking exercise and, on rare occasions, it is appropriate to work outside policy. However, this is a high bar and, in most cases, failure to follow a fair procedure will render a dismissal unfair and this part of the Judgement’s conclusion is worthy of note:
“The members of the panel, and particularly the lay members appointed for their industrial experience, wish to stress that this is an unusual and rare case where a dismissal has been found to be fair when there has been no written warning and no offer of an appeal.”
Matthews v CGI IT UK Ltd [2024] EAT 38
So what are the takeaways for employers?
- Ensure you have a robust policy and procedure in place to deal with performance and behaviour issues. Having a robust and ACAS compliant policy will help if you ever need to step outside procedural norms.
- Don’t assume you can skip procedure. Where misconduct has been demonstrated, warning/s and the ability to appeal any sanction are crucial steps in almost all cases.
- Where the relationship has broken down, make genuine efforts to rebuild it. Consider mediation or other remedial steps.
- Document everything. If you do end up in the rare situation where dismissal without procedure is being considered, you’ll need robust evidence that further process would be futile. Keeping notes is one of those simple things done well that are all too essential.
- Seek advice. Dismissal without following any procedure is a high-risk move. Make sure you have expert guidance.
Your employees are your business. Investing in fair processes and rebuilding relationships is always preferable to rushing to dismissal.
If you’re unsure about your policies and procedures, or need some guidance on a specific case get in touch today.
- Polkey v A.E.Dayton Services Ltd [1988] AC 344 ↩︎