Whilst most workplaces experience disagreements from time to time, serious conflicts can have a major impact on the business, particularly small businesses with limited resources. There are situations where an individual is employed and, despite performing the role to a satisfactory quality, there is a clash of personalities within the workplace that causes considerable difficulties. But if a dismissal is to be contemplated due to a personality clash, how can an employer do so fairly and lawfully?
How Can I Dismiss? – The Legal Position
Dismissals are dictated by the Employment Rights Act 1996, which lists five potential reasons for dismissal:
- Conduct;
- Capability;
- Redundancy;
- Breach of a statutory restriction; and
- Some other substantial reason (SOSR).
Although ‘personality’ is not listed in the legislation, dismissals of employees who clash within the workplace often falls within the ‘catch all’ provision of ‘some other substantial reason’ (SOSR). To dismiss an employee under this head, the employer has to have a ‘fair reason’ for dismissing their employee, such as a serious breach of trust.
However, whether a dismissal for a potentially fair reason will be deemed fair or unfair will depend on all the circumstances of the case and whether the employer acted reasonably in treating the reason as sufficient for dismissal. This will include, amongst other factors, whether the decision to dismiss was within the 'range of reasonable responses' open to it.
What Behaviour Does 'Some Other Substantial Reason' Cover?
There is no statutory definition of SOSR. The case law offers that the reason for the dismissal must be ‘substantial’ and that the SOSR should justify the dismissal of that particular employee in the particular circumstances of the case.
Many circumstances may fall into the SOSR category and some may overlap with other categories, e.g. conduct. But common examples include; business re-organisations which do not result in redundancy; an employee’s refusal to accept a change to the terms and conditions of their employment contract; and, as suggested, personality clashes.
Cases of SOSR Dismissal
The leading case on dismissals for personality clashes under SOSR is Perkin v St George’s Healthcare NHS Trust. The Court of Appeal considered the dismissal of an executive after senior colleagues raised concerns about his abrasive manner and management style, although his competence for the role was not in question.
The Court of Appeal reinforced the Employment Tribunal’s decision that although the dismissal was procedurally unfair, the executive’s behaviour, including making unfounded accusations against colleagues, could otherwise be relied upon so as to justify his dismissal. As such, although the dismissal was found to be procedurally unfair, Mr Perkin received nothing by way of compensation.
The case confirms that provided an employer’s dismissal procedure is fair, an employee’s personality is capable of being justification for dismissal where the employee’s actions can be brought within the ambit of ‘conduct’ or ‘some other substantial reason’.
Another example of conflicting employees leading to dismissal is the case of Mealing v Edmonds t/a The Gatehouse Diner, where a small employer was forced to deal with a familiar problem: what to do if employees’ behaviour becomes unprofessional due to a personal disagreement between staff? Two colleagues who had been friends “fell out badly” and “ceased to speak to each other”. The workplace situation deteriorated to the point where disciplinary action was initiated against them both. One employee’s behaviour improved, but the other’s (Ms Mealing’s) did not. She was subsequently dismissed after further warnings, with her behaviour towards her colleague being the reason for dismissal. Although the tribunal (again) ruled that the employer’s dismissal procedure was inadequate, it also found that the claimant’s behaviour was so bad that she should not receive any compensation. Additionally, the Tribunal found that it was proportionate for the employer to dismiss one employee but not the other: one employee’s behaviour had improved while the claimant’s had not despite formal warnings.
What Steps Should an Employer Take to Manage This Situation?
As can be seen above, an Employment Tribunal may accept as fair an employer's decision to dismiss an individual where there is a conflict of personalities. However, such cases are rare and it would not be lawful to dismiss an employee simply on the ground of a personal quirk or because of minor personality clashes.
It is essential that employers make documented efforts to first properly investigate such situations and to also give their employees time to resolve their conflicts. Employers are expected to take all reasonable steps to rectify workplace issues whether this is by finding alternative employment for the employees concerned, changing employees’ work schedules so that conflict is less likely to be an issue, initiating talks with the employees with reconciliation in mind or any other reasonable solutions that can be put in place before progressing to dismissal.
It is also worthwhile considering whether a mediation may be an appropriate route to go down to try and deal with the situation in a constructive manner, for both the employees and for the business as a whole.
If the situation cannot be resolved and dismissal is considered, employers should follow a fair dismissal procedure. Despite a SOSR based dismissal due to a personality clash not requiring an employer to follow its disciplinary procedure, it is highly advisable that this process follows a similar procedure. This is particularly the case as such a dismissal could be viewed as being for conduct or SOSR. As such, a process similar in style to that set out in the Advisory, Conciliation and Arbitration Service (ACAS) Code is the suggested best practice.
What do I need to know?
- An employee with a ‘difficult personality’ will not be enough in and of itself to dismiss fairly, though the manifestation of this through their actions may provide grounds for such action.
- An employer should only dismiss as a last resort, following appropriate warnings being given and it is highly advisable to investigate other viable options and make appropriate accommodations to remove such personality conflicts.
- When colleagues or clients are simply unable to work with the source of the conflict, an employer may dismiss for SOSR with it being advisable to follow ACAS Code procedure in order to facilitate this action.
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