Although previous cases have confirmed that employers can dismiss employees under the category of “some other substantial reason” (SOSR) where there has been a breakdown in trust and confidence, a recent case has confirmed that the fact that a breakdown is established on the evidence will not necessarily be sufficient to ensure the resulting dismissal is fair. A Tribunal may consider why the breakdown occurred in the first place along with the reasonableness of the employer’s approach.
Dismissal For A Breakdown In Trust And Confidence
Governing Body of Tubbenden Primary School v Sylvester
In this case, a deputy head teacher, S, was friends with another teacher at that school who was arrested and suspended on suspicion of possessing indecent images of children (not from the school).
At the time that the allegations came to light, the Head spoke to S and told her not to maintain that friendship. S refused. The Head was aware over the coming months that the friendship had continued.
Nine months later, a further meeting was held with the Head and a representative of the Education Authority, where the friendship was discussed and on that occasion, S was not given any instructions to break off the friendship.
Nearly nine months after that, the Claimant was telephoned and told to attend a meeting and bring a trade union representative with her. The outcome of the meeting was that she was suspended as a result of her continued friendship with the accused teacher and its impact on the Head’s trust and confidence in her. The matter proceeded to a disciplinary and the Claimant was dismissed. Her appeal was unsuccessful and she brought a claim for unfair dismissal in the Employment Tribunal which was upheld. The school appealed to the Employment Appeal Tribunal (EAT).
The EAT stated in cases of dismissal for SOSR such as this, where the employee is dismissed because there has been breakdown in trust and confidence, it was appropriate for the Tribunal to have regard to what had caused the breakdown and not simply stop once they were satisfied that a breakdown had in fact, occurred.
In this case, it was relevant that S had been allowed to continue the friendship without further warning (or any formal warning) for many months, that S had not been informed of concerns raised by parents at the school, that S had been suspended in breach of school policy and the breaches in the disciplinary procedure by the school. The standards expected from the school would be the same as a conduct dismissal.
The one part of the School’s appeal which was upheld, however, was their argument concerning the contributory fault on the part of S, i.e. that her compensation should have been reduced to reflect her contribution to the state of affairs (the continuing friendship in the circumstances).
Comment
This case serves as a warning to employers that may have seen the previous cases as a green light to use SOSR as grounds for dismissal when relations with an employee have deteriorated beyond repair. Employers need to consider whether they have contributed to the breakdown themselves and factor this in to the decision as well as ensuring they follow a process which is akin to the disciplinary process to ensure that any dismissals are sound.
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Laura Kearsley
is a Partner in our Employment Law team.
For more employment law advice or to comment on this article, please call Laura or another member our employment law team on 0800 024 1976 or contact us via our online form.