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Case law: Court gives guidance on which employee to dismiss when working relationships between employees break down

Employers will welcome a Court of Appeal decision which will help them decide which employee to dismiss in cases of major breakdown in working relationships between employees, where the behaviour of neither amounts to gross misconduct justifying summary dismissal - but the employees cannot work together.

October 2018

This update was published in Legal Alert - October 2018

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

An employee started work as a trainee but within a year her relationship with a more senior staff member began to deteriorate. After another a year, she referred herself to occupational health alleging her health was suffering because of her colleague's bullying.

Her employer took steps to enable them to work separately, but eventually the trainee brought a grievance on grounds she had been bullied and harassed, which was upheld.

The senior staff member was moved out of the office they shared, and disciplinary proceedings were started against her, at the end of which she was given a final written warning. On her appeal, this was reduced to a formal warning because of her good disciplinary record.

The junior employee then went off sick and her GP reported that she was suffering from stress and reactive depression because of her colleague's bullying and harassment. Even her colleague's presence was, on one occasion, enough to make her extremely distressed.

An external investigator was brought in and found:

  • Their working relationship had broken down completely and could not be salvaged
  • That arranging for them to work in a way that prevented their paths from crossing was not feasible and would adversely affect other employees
  • That separating them was not a reasonable adjustment that would normalise work for them

As a next step they both agreed to mediation. Each had separate meetings and the more senior employee said she would do whatever was needed to rebuild the relationship, but the junior employee refused to meet face-to-face before a mediator, so the process failed.

Eventually, the employer told the junior employee that her options were to agree to work with her senior colleague, redeploy to a different job, or resign. She was told that her preferred option – to carry on in her current job but not have to work with her colleague – was not feasible. When she said that none of the employer's options were acceptable, it dismissed her on grounds of the irretrievable breakdown between her and her colleague.

She claimed unfair dismissal, direct disability discrimination and failure to make reasonable adjustments. She lost her claims in the Employment and Employment Appeal Tribunals.

In the Court of Appeal, she argued that:

  • She was the victim/innocent party – it was her colleague who had bullied and harassed her - and her colleague should have been dismissed instead
  • She was disabled for the purposes of discrimination law (the Employment Tribunal had previously ruled that she suffered from depression and anxiety and was phobic about her colleague, but was not disabled)
  • Her Employment Tribunal hearing had been unfair because her (non-qualified) representative had been incompetent

An appeal to the appeal court can only be made on grounds of an error of law. In this case, the Court ruled that there had been no errors of law in the lower tribunals and their rejection of her unfair dismissal claim had been justified. Particularly:

  • The senior employee's behaviour did not amount to gross misconduct justifying her summary dismissal at the outset
  • Subsequently, despite her initial bullying behaviour, the senior employee had genuinely engaged in trying to repair the relationship, and had done so for at least two years before the dismissal of her junior colleague. The junior colleague, on the other hand, admitted she could no longer bear any contact with her more senior colleague, which resulted in an involuntary reaction of upset and distress – leaving the employer with few workable solutions
  • The junior employee had not produced medical evidence that she had a disability so the tribunal had been entitled to find she was not disabled
  • Any incompetence on her representative's part was not an error of law

Overall, therefore, the tribunal's ruling had been fair and sustainable.

Operative date

  • Now

Recommendation

  • Employers deciding which employee to dismiss in cases of major breakdown in the working relationship between employees, where the behaviour of neither amounts to gross misconduct justifying a summary dismissal, but they cannot work together, should consider all options. This may include redeployment and reasonable adjustments, but the employer is entitled to take into account one employee's efforts at reconciliation compared to the other's intransigence, when choosing which employee to dismiss

Case ref: Simmonds v Salisbury NHS Foundation Trust [2018] EWCA Civ 1864

Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.

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