Can fireworks between colleagues lead to dismissal? - Blair Duncan

But what happens when fireworks erupt between two colleagues in the workplace and one refuses to work with the other? How does the employer deal with that scenario? Should it, can it, dismiss? The answer is, in typical lawyer style, it depends.

To show a fair dismissal (and the burden is on the employer to do that), the employer needs to demonstrate that one of five potentially fair reasons for dismissal applies. They are: conduct (or more practically misconduct); capability (on grounds of health or aptitude); redundancy; continuation of employment would be breach of a statutory enactment; or, as a catch-all, some other substantial reason to justify dismissal. The latter is usually referred to as SOSR.

In our scenario above, conduct could be relevant although the issue is not what was done or said (although action there could also follow depending on the circumstances) but rather, that a relationship has broken down such that they refuse to work together.

Capability is unlikely to be relevant as it has nothing to do with qualifications or ability, or their health. Similarly, redundancy doesn’t apply because there is no genuine redundancy situation and there are no relevant statutory enactments that provide colleagues must get along (or not yet, anyway).

SOSR can therefore be helpful where none of the other four reasons apply to the circumstances. But, to rely on this reason, the employer needs to show that the conflict was serious and not trivial, causing major disruption to the business, as evidenced by comments/complaints from customers or suppliers, or concerns from staff.

Thereafter, like any other dismissal process, the employer has to demonstrate the reasonableness of the dismissal. How does the employer do that? Ultimately, the employer would need to show that it has done everything it reasonably can to avoid dismissal.

To that end, employers could consider mediation between the affected employees. Alternatively, the employer might want to consider redeployment of one of the workers or changing work patterns. Dismissal for SOSR also requires notice to be given (or paid in lieu).

Notwithstanding this general position, be wary of conflicts caused by different views, particularly if those views are protected (such as religious or political beliefs). Dismissal for holding a protected belief (or the reasonable manifestation of that belief) could give rise to a successful claim for discrimination, as well as reputational damage, and so should be avoided or treated with caution.

Also, case law tells us that an employer can’t simply take umbrage with an employee’s ‘difficult’ personality. Instead, there has to be a serious issue with how that difficult personality manifests itself and impacts on colleagues or customers.

Finally, while health is generally not a factor in SOSR cases, if the individual has a medical condition or disability which is the reason for the behaviour causing concern, employers should exercise caution as dismissal could amount to discrimination arising from disability.

The breakdown of workplace relationships can, like fireworks, create headaches but it is important for employers to remember there are options to resolve the situation and keep the bonfire contained.

Blair Duncan is a Senior Solicitor, Blackadders LLP