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Some Other Substantial Reason - Potentially a Fair Reason for Dismissal

One of the potentially fair reasons for dismissal is ‘some other substantial reason’ (SOSR). SOSR requires an employer to show that the substantial reason for dismissal was potentially fair and reasonable in the circumstances.

There isn’t an exhaustive list of what might constitute grounds for SOSR. Each case turns on its own facts. While doing some research I came across the case of Symes v The Pepperbox Nursery Ltd [2011], which suggests that it was fair to dismiss an employee whose husband was investigated for serious criminal charges.

The Pepperbox Nursery Ltd runs a nursery for children up to the age of five. The nursery had built its reputation on recommendations. Mrs Symes worked for the company as a nursery nurse. She was a satisfactory employee, and she had a good working relationship with her employer.

In December 2009, Mrs Symes told Mrs Millard 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 Symes told Mrs Millard 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 Symes’ 18-month-old son. In October, social services invited Mrs Millard to a child protection conference regarding Mrs Symes’ son, who attended the nursery. For the first time, Mrs Millard was informed of the specific charges against Mr Symes. These included some extremely serious allegations. At about that time, the matter was aired in a local newspaper.

When it was brought to her attention Mrs Symes said that she would leave the nursery if Mrs Millard thought it best, as she did not want the name of the nursery “brought down by this”. Mrs Symes also increased the security settings on her Facebook page, but it still indicated her relationship status as “in a complicated relationship with Andy Symes” and confirmed that she worked at the nursery.

Ofsted told Mrs Millard that if Mr Symes was convicted, and Mrs Symes 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 Symes. Mrs Millard informed Mrs Symes.

She was upset at this news, and said that she would not be told how to live her life. Over the next few weeks Mrs Millard met with Mrs Symes to discuss the situation. The company offered her a compromise agreement and settlement terms, but they were rejected. Mrs Symes made no attempt to address the company’s concerns or persuade it that they were not legitimate.

In November, the company dismissed Mrs Symes for SOSR. She appealed, saying that the company was blaming her for someone else’s wrongdoing. Her appeal was unsuccessful and Mrs Symes complained of unfair dismissal. The tribunal found that, ultimately, the company’s need to protect its reputation outweighed its wish to support Mrs Symes, 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. Mrs Symes’ argued that the company’s response to the matter was “hysterical and irrational”, but the tribunal disagreed, saying that the company was anticipating the “potentially irrational but very real concerns of its customers”.

The tribunal accepted that there was probably nothing that Mrs Symes 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 Mrs Symes had been fairly dismissed. If you’re dealing with a potential SOSR case, remember that the ACAS Code does apply and follow your procedures before taking the decision to dismiss.

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