Can an employer justify the dismissal of an employee for some other substantial reason (SOSR) linked to reputational risk where the employee’s partner, who is also employed by the same employer, commits an act of gross misconduct or a criminal offence?
The Employment Tribunal (ET) has provided guidance in the case of Mrs P Smith v North West Ambulance Service Trust on how other tribunals may approach such cases. Mrs Smith (MS) and her wife, SS, were both employed by North West Ambulance Service Trust (NWAST) as Ambulance Care Assistants, a role involving the transport of patients to and from hospital.
At their request, their shift patterns were usually arranged so they could work together to support a better work/life balance. However, when this arrangement was not implemented by their manager, both MS and SS raised grievances which were not formally addressed by NWAST. Issues with the rota continued, and both employees believed the manager was acting deliberately and being obstructive. This ultimately resulted in SS assaulting the manager with a hammer outside her home in the early hours of the morning, causing serious injuries.
Although MS was not involved in the assault, she was arrested after the manager alleged previous harassment and threats to kill by MS. The police later released MS on bail, with conditions preventing her from attending work.
NWAST proceeded to suspend MS on full pay, based on the suspicion arising from her arrest and the allegations made by the manager. Following an investigation meeting, MS was invited to a formal hearing and informed that her employment could be terminated for some other substantial reason (SOSR). The hearing was rescheduled, and by that time MS’s bail conditions had been lifted.
Following the rescheduled SOSR hearing, MS received an outcome letter confirming her dismissal. Although the police had dropped the criminal investigation, NWAST concluded that trust and confidence had been undermined due to reputational damage arising from her arrest and her association with SS, who had been charged with the attempted murder of the operations manager.
After an unsuccessful appeal, MS brought a claim for unfair dismissal in the Employment Tribunal.
The ET accepted that, on the facts, the matter fell within the scope of SOSR, given that MS was married to a fellow employee who had attempted to murder a work colleague and that MS herself had been arrested with bail conditions linked to the incident. However, the tribunal found that the alleged reputational risk related primarily to SS’s conduct rather than MS’s. MS played no active role in the assault, had no prior knowledge of it, and was not responsible for it. The tribunal held that simply being married to SS did not justify reputational risk sufficient to dismiss MS. Accordingly, MS succeeded in her claim for unfair dismissal.
The ET acknowledged that the relationship of trust and confidence between the manager and MS had broken down. However, the employer should have explored alternative options short of dismissal and demonstrated why those alternatives were not workable.
This decision provides important guidance on reputational risk dismissals. Employers must ensure that any investigation is objectively fair and based on genuine, substantive grounds demonstrating how the employee’s conduct impacts the business. Speculation or assumptions will not be sufficient. There must be a clear and demonstrable link between the allegations and any potential harm to the employer’s reputation.
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