SOSR dismissal: relevance of length of service and/or other sanctions

Alexis v Westminster Drug Project

An employer was not required 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.

Background

Ms Alexis was dyslexic and therefore disabled. Her employer, WDP, knew this and was aware of a recommendation that she should receive 25% additional time in any future exams or interviews.

Ms Alexis and two others were subject to a restructuring exercise. WDP was reducing the headcount from three people to two people, and selection for the two posts came down to a competitive interview process. Aware of her disability, WDP sent her the interview questions 15 minutes before the interviews.

Ms Alexis scored poorly and was unsuccessful in both her interviews. She subsequently raised a grievance, asserting that WDP 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. WDP paused the restructuring process whilst it considered her grievance.

Her grievance was partially upheld. Whilst the decision maker considered that her receiving the interview questions 15 minutes in advance was reasonable, because she was not told that she would be receiving the interview questions in advance, it upheld her grievance, and she was offered fresh interviews for both roles. She appealed that decision, despite it being largely in her favour. The appeal outcome was that she would be re-interviewed with a new set of questions, the headings of which would send her 24 hours in advance, along with a summary of competencies.

Ms Alexis continued to send numerous, lengthy emails to the decision maker and others about the process, saying that she couldn’t accept the decision that was made, she was unsure how to proceed, but in any event, she felt that she was still being subject to discrimination.

Ms Alexis was asked to a meeting 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 the employer. Following this meeting, WDP concluded that the relationship had irretrievably broken down and it dismissed Ms Alexis for ‘some other substantial reason’ with notice. Ms Alexis brought a claim of unfair dismissal.

The 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 on the basis that WDP had not given sufficient consideration to her length of service or any alternative to dismissal.

EAT decision

The appeal was dismissed.

While length of service can be relevant in certain dismissal scenarios, it is not, said the EAT, a mandatory consideration in every case. In this instance, the dismissal was based on an irretrievable breakdown in trust and confidence, and therefore length of service was irrelevant. The EAT also found that WDP had considered other measures but reasonably concluded that they would not resolve the issues. Mediation or redeployment were impractical as the breakdown in trust rendered continued employment unsustainable.

Comment

Establishing an irreparable breakdown in the employment relationship is a high bar and this case highlights the importance of documenting decisions and acting reasonably when relying on SOSR as grounds for dismissal.

However, provided an employer has a genuine and reasonable belief that its relationship with an 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.

Here the employer carried out an internal review of the relationship between the parties and came to a clear evidenced decision that it had reached the point of no return. The EAT’s decision makes it clear that, where matters have reached this point, the employer is not required artificially to jump through hoops of looking at ways that dismissal might be avoided or taking account of length of service as they might be advised to do in, for example, a capability or conduct dismissal.