Employment & Pensions Blog: What factors don't have to be considered where there is an irretrievable breakdown in the employment relationship?

There is an implied term of mutual trust and confidence in every employment relationship. This works both ways in that employees need to have trust and confidence in their employers, and vice versa.

Terminating someone’s employment because of an irretrievable breakdown in the employment relationship is always difficult. The question of whether the employment relationship is genuinely irretrievable must involve a subjective assessment of exactly what has happened between the parties, and the nature of the relationship at the point of dismissal. In an unfair dismissal claim, the risk for employers is always that an Employment Tribunal might think you could have done more to save the employment relationship before dismissal.  

The irretrievable breakdown of the employment relationship was the subject of a recent Employment Appeal Tribunal decision in Alexis v Westminster Drug Project.  The question for the Appeal Tribunal was whether the employer should have taken into account the employee’s long period of service, as well as whether there were any alternatives to dismissal, before terminating her employment.

Background

Ms Alexis was employed since 2010 by the Westminster Drug Project as a receptionist /administrator. She disclosed her dyslexia to her employer and a report from the Dyslexia Assessment and Consultancy recommended reasonable adjustments, including additional time for interviews and exams.

Ms Alexis was involved in a restructuring exercise where three posts were being replaced with two new ones, and the three employees in question had to undergo a competitive interview process for the new positions. Ms Alexis did not request any specific adjustments for her dyslexia, and was unsuccessful in securing a position. Ms Alexis later submitted a grievance that she should have been given the interview questions 24 hours in advance because of her dyslexia. 

The grievance was upheld, and she was allowed to re-interview with the questions being sent to her in advance. Despite the favourable grievance outcome, Ms Alexis appealed. Despite a favourable appeal outcome, Ms Alexis submitted numerous emails to the decision maker and to the company chairman.

Westminster Drug Project determined that Ms Alexis’ persistent challenges and communications led to their trust and confidence in her to be irreparably damaged. Her employment was therefore terminated. 

Employment Tribunal

Ms Alexis filed claims of unfair dismissal, disability related harassment, and failure to make reasonable adjustments. Rejecting all of her claims, the Tribunal held Westminster Drug Project genuinely and reasonably believed in the irretrievable breakdown of the employment relationship, and it had followed a fair dismissal process.

Ms Alexis appeal to the Employment Appeal Tribunal.

Employment Appeal Tribunal

The basis for Ms Alexis’ appeal was that before terminating her employment, her employer should have considered her long period of service at the company as well as whether there were any alternatives to her dismissal. 

The Employment Appeal Tribunal dismissed the appeal, determining that once Westminster Drug Project’s trust and confidence in Ms Alexis had irretrievably broken down, dismissal became its only option. Factors such as length of service and alternatives to dismissal would not have made any difference because they both go to having to continue an employment relationship that had already irretrievably broken.  

Comment

Where there is a breakdown of mutual trust and confidence/irretrievable breakdown in the employment relationship, as a matter of law, the official reason for dismissal is ‘some other substantial reason,’ which comes from the Employment Rights Act 1996. 

The law isn't exactly famous for this, but the Employment Appeal Tribunal’s decision in Alexis v Westminster Drug Project makes logical sense in cases like this. Where a reasonable decision has been made that the employment relationship has irretrievably broken down, dismissal is going to be the only option in almost all cases. Factors like a long period of service and considering alternatives to dismissal go towards trying to keep the employment relationship going, which completely contradicts the idea of an irretrievable breakdown.  

If you require any further assistance or support in matters involving an irretrievable breakdown, or any other employment related matters, please contact a member of the Employment Team.