In UK employment law we have five potential fair reasons for a dismissal. They are:
- Conduct (or more accurately misconduct)
- Statutory Reason
- Some Other Substantial Reason (hereby referred to as SOSR)
Now there isn’t a definitive list of what is or is not a SOSR, we do know it mustn’t be trivial and because it is substantial the employer should have exhausted other options such as demotion, relocation, mediation etc, as applicable.
What we know is that each case is determined on its own merits and following a fair procedure is what is necessary.
In looking at issues around safeguarding and in particular ‘disqualification by association’, the case of S who was employed as a Nursery Nurse in private day nursery in the North of England, is a illustrative case as to where can be fair to dismiss an employee whose husband has been investigated for serious criminal charges.
The nursery had built its reputation on recommendations. In December 2009, Mrs S told her employer that her husband had been arrested for possessing indecent images of children, which she explained this as a “simple misunderstanding”. Matters worsened and the following May, Mrs S told the employer that the police had found more indecent images of children, and were investigating further.
One of the areas for investigation was whether or not one of the images involved Mr and Mrs S’s 18-month-old son.
In October, social services invited the employer to a child protection conference regarding Mrs S’s son, who attended the nursery. For the first time, the employer was informed of the specific charges against Mr S. These included some extremely serious allegations. At about that time, the matter was also reported in a local newspaper with names included.
When the article was brought to her attention Mrs S said that she would leave the nursery, as she did not want the name of the nursery “brought down by this”. Mrs S also increased the security settings on her Facebook page, but it still indicated her relationship status as “in a complicated relationship with X” and confirmed that she worked at the nursery.
Ofsted told the employer that if Mr S was convicted, and Mrs S chose to live with him after that date, she would become a “disqualified person” and unable to work with children. Ofsted also recommended that the company should not continue to employ Mrs S. The employer informed Mrs S.
She was upset at this news, and said that she would not be told how to live her life.
Over the next few weeks the employer met with Mrs S on several occasions. The company offered her a compromise agreement and settlement terms, but they were rejected. Mrs S made no attempt to address the company’s concerns or persuade it that they were not legitimate.
In November, the company dismissed Mrs S for SOSR. She appealed, saying that the company was blaming her for someone else’s wrongdoing. Her appeal was unsuccessful and Mrs S complained of unfair dismissal. The tribunal found that, ultimately, the company’s need to protect its reputation outweighed its wish to support Mrs S, and that was why it had dismissed her.
After the publication of the newspaper article, the employer was much more concerned than it had been previously about how the situation might impact on the business.
By November 2010, the company had concluded that, in light of the press coverage, there was a “very real danger” that the nursery would become associated with the criminal charges, which could destroy its reputation and the trust that the parents of its pupils needed to have in it.
The tribunal accepted that there was probably nothing that Mrs S could have done to combat the employer’s concerns, and that she had been put in a very difficult position. However, the company had conducted an entirely fair and proper procedure, and therefore Mrs S had been fairly dismissed.
Redwing include clauses regarding Third Party Pressure to Dismiss in all of our Early Years contracts to help you to be able to demonstrate a fair procedure. If we can help you with your contracts please don’t hesitate to contact us on 01527 909436.
Redwing Solutions provides expert knowledge in HR for Early Years to settings across the UK.
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