3rd March 2016
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Dismissal for poor performance can be justified; so can dismissal for repeated or serious misconduct. Redundancy or reorganisation can also be used, so long as you can show that the employee has been selected for dismissal on business grounds and not singled out because she is pregnant, disabled or on one of the other unlawful discriminatory grounds.

The Employment Rights Act also contains a catch-all justification of “Some Other Substantial Reason”. When I started practising employment law, this was generally known as “scraping the bottom of the barrel”: if you couldn’t find anything else, try this.

Life has moved on since then. There is growing recognition by employment tribunals that, in one particular context, “some other substantial reason” can be a good reason for dismissal. The context is where an employee’s behaviour is just impossible. It might not be enough to constitute gross misconduct, but it certainly is enough to upset everyone he or she comes into contact with.

It’s not enough for the employee to be a difficult personality; his behaviour must be such as to cause a complete breakdown of relations with colleagues – or customers.

The leading case involves a clinician by the name of Ezsias who, despite being undoubtedly excellent at his job, made it impossible for his colleagues at North Glamorgan NHS Trust to work with him.  There is a further example in the case of Treganwen v Robert Knee & Co, where a female employee upset all her lady colleagues by persisting in discussing her love life in graphic detail, despite being asked to desist.

The secret to effecting a fair dismissal in this sort of situation is to take the utmost care in ensuring that the process you follow is fair. The employer must follow a fair procedure – ideally the ACAS procedure for discipline and grievance matters. Once he perceives that a problem exists, he must conduct an investigation. In this type of matter, one element of the investigation will be a discussion with the employee, in order to get an idea why he thinks relations have become strained.

If matters reach the point where the employer is contemplating dismissal, he will need to conduct a meeting with the employee at which dismissal is presented as an option. The employee must be given a chance to respond and should be granted an opportunity to be accompanied. I have guided employers through several dismissals on this ground: usually I find that the employee’s trade union representative becomes a helpful ally in resolving the problem.

The other step the employer should take is to explore whether the broken relationships can be repaired. Workplace mediation can sometimes help. The bottom line however is that, if you are faced with an impossible employee, a breakdown in employee or customer relations can provide a ground for tackling the problem – even if the employee’s conduct falls far short of gross misconduct or the problem is not entirely his fault.

Hywel Griffiths

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