No Guilt by Association: Smith v North West Ambulance Service (NWAS) Trust

This case serves as an important reminder to employers about the limits of a dismissal based on “some other substantial reason” (SOSR).

The facts

The Claimant and her wife both worked for NWAS, the Respondent. They had requested that their rotas be aligned so that they could work together and have the same time off.  Both the Claimant and her wife had requested time off so they could attend a funeral. These requests were denied, and they believed that their manager was being obtrusive and raised a joint grievance against their manager.

The Claimant’s wife then attacked their manager with a hammer outside of the manager’s home. The Claimant had no prior knowledge or involvement in the attack. The Claimant was arrested following allegations made by her manager of harassment and threats to kill.  The Claimant was arrested placed on bail, with one of the conditions preventing her from going to work.

The Claimant was suspended by the Respondent.

The police later confirmed that the Claimant would not be charged and the restrictions were lifted. Despite this, the Respondent dismissed the Claimant for SOSR. The Respondent based this on reputational damage and a breakdown of trust and confidence. The Claimant appealed against the dismissal, was but this was not upheld. The Claimant then brought a claim to the ET for unfair dismissal.

Employment Tribunal (ET) findings

The ET found that the reasons for dismissal were because:

1. The Claimant’s association to an employee who had attempted to murder another employee; and
2. The Claimant had been arrested and was subject to bail conditions.

The ET held that no reasonable employer would have considered the facts of this case would cause any real risk of reputational damage.  The reputational risk was from the wife’s conduct, not the Claimant’s. The Claimant was not named in any media and did not contain a photo of her.

The ET accepted the relationship of trust and confidence between the Claimant and her manager had broken down, but it was not good enough reason to dismiss the Claimant, not unless and until other alternatives had been explored or tried and then rejected or not been successful.

The ET also noted that the Respondent was a large organisation that could have explored redeploying the Claimant to a suitable alternative role.

The Claimant was found to have been unfairly dismissed.

Points to note for employers 

An employee being associated with someone else’s wrongdoing is not enough to dismiss someone. Employers must make decisions on evidence about the employee’s own conduct.

Criminal charges are not always enough to dismiss an employee. Whilst reputational damage can be a potentially fair reason for dismissal under SOSR, the ET will look closely whether concerns over reputation are genuine, reasonable and proportionate in the circumstances.

Employers should not rely on speculative reputational damage. The EAT has previously said that there must be a link between the allegations and whether that reputation is likely to be damaged. Assumptions are not enough.

When the reason for dismissal is a breakdown in trust and confidence, the breakdown must be substantial and not used as a “catch all” reason for dismissal.

Dismissal should be the last resort, not the first action. Large organisations should consider whether redeployment could be feasible as an alternative.

If you would like guidance on managing SOSR dismissals in the workplace, please do not hesitate to get in touch with the Employment Team.