Dismissal by association: was it fair to sack an employee whose partner attacked her manager?
That was the question the tribunal had to consider in Mrs P Smith v North West Ambulance Service Trust.
Facts
Both Mrs Smith and her wife, SS, worked as Ambulance Care Assistants for the North West Ambulance Service Trust (NWAST), responsible for transporting patients to and from hospitals. They asked to work together and have their rotas aligned so they could share time off. This wasn't granted and they blamed their manager who they believed was being obstructive.
One morning, SS attacked their manager with a hammer causing significant injuries. Mrs Smith was not involved in the assault but was arrested in connection with allegations made by the manager of harassment and threats to kill. Mrs Smith was later released on bail, which included conditions preventing her from attending work. As a result, she was suspended on full pay, with the suspension explicitly linked to her arrest for those allegations.
Following an investigation meeting, Mrs Smith was invited to a formal hearing and warned that her employment could be terminated for ‘some other substantial reason’. The hearing was delayed and, during this time, her bail conditions were lifted. The SOSR meeting was rescheduled and a few days later, Mrs Smith received the outcome letter confirming her dismissal. The letter stated that, although the police chose not to pursue criminal charges, the incident had undermined trust and confidence in her. It said there were reputational damage issues and that “put simply, your known arrest and association with someone who has been charged with attempted murder of your operations manager undermines that trust.”
Mrs Smith appealed but the decision to dismiss was upheld. She brought a claim for unfair dismissal.
Employment Tribunal
The tribunal held that the factual reasons for dismissal were:
- Mrs Smith was married to a fellow employee who had attempted to murder a colleague; and
- Mrs Smith had been arrested and was subject to bail conditions before being discharged.
The tribunal accepted that these reasons amounted to ‘some other substantial reason’ (SOSR). It then considered whether, in all the circumstances, it was fair to dismiss Mrs Smith for this reason.
The tribunal observed that Mrs Smith's arrest was an event in which she played no active role, she didn't know about and was not responsible for. She had been arrested because of allegations made against her by her manager, but the police had concluded there was no evidence to support these. Nevertheless, the fact of her arrest appeared to determine the outcome.
The tribunal observed that NWAST repeatedly referred to “reputational damage” but concluded that this was not a factor a reasonable employer could properly take into account in these circumstances. It noted that any reputational harm NWAST might suffer stemmed from the fact that an employee (SS) attacked her manager. Even then, it was unlikely to be significant: apart from sharing an employer, there was no work-related connection, and there was no evidence that anyone believed NWAST bore responsibility for SS's violent actions or had any prior warning of them. The tribunal found that Mrs Smith's employment by the same employer added nothing to that risk. The root and overwhelming cause of any reputational risk was SS's conduct, not Mrs Smith - whose only involvement was being married to SS. The tribunal concluded that NWAST did not properly assess the risk but speculated about it.
The tribunal accepted NWAST's view that the relationship of trust and confidence between Mrs Smith and her manager had broken down. However, in the tribunal's view, that was not, in itself, a sufficient reason for dismissal - at least not unless and until other reasonable alternatives had been explored and rejected or implemented and found to be unsuccessful.
The tribunal held that Mrs Smith's dismiss was unfair.
Key takeaways for employers
This case highlights the importance of evaluating reputational risk objectively rather than relying on speculation or making assumptions about it. You must carefully assess the potential impact and ensure that any decision is not just based on conjecture.
Even where an employee faces criminal charges - which was not the situation here as the police decided to take no further action - dismissal for reputational reasons cannot be justified solely on that basis. The Employment Appeal Tribunal decision in Lafferty v Nuffield Health makes clear that there must be a demonstrable link between the allegations and the potential harm to the employer's reputation. For example, a serious driving offence is unlikely to affect the employer's reputation if the employee's role does not involve driving duties.
It is also essential to keep circumstances under review. If the original basis for action falls away, you should reconsider the position. In Mrs Smith's case, concerns about her remaining on bail became irrelevant once bail conditions were lifted and the police confirmed that no further action would be taken against her. Despite this, NWAST continued with the course of action resulting in dismissal.
Finally, caution is required when seeking to rely on a breakdown in trust and confidence as a reason for dismissal. The Court of Appeal in Leach v Office of Communications warned that this is not a “convenient label to stick on any situation, in which the employer feels let down by an employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate.” You must ensure that such a breakdown is genuine and substantiated.
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