Back in January 2013, my colleague David Whincup published a blog about an Iowa dentist who dismissed his assistant because of the threat which his wife considered her to pose to their marriage (http://www.employmentlawworldview.com/spousal-pressure-to-dismiss-fair-or-unfair/). For those happy few who have spent the last 17 months wondering what would happen in similar circumstances in the UK, wonder no more. The Telegraph reported last week that a UK Employment Tribunal awarded £35,000 to a PA dismissed by her property company boss following his wife’s discovery of their affair (http://www.telegraph.co.uk/news/uknews/law-and-order/10863136/PA-sacked-by-her-boss-after-wife-found-out-about-their-affair-awarded-35000-damages.html.
During her affair with the Chief Executive the PA had been treated to a car, flat and holidays to Australia, Cuba and Mexico. However, the course of an office romance never did run smooth. Mrs Chief Executive received an anonymous letter about the affair and details of the flat and holidays. She subsequently pressured her husband to sever ties with the PA and he therefore asked her to leave, a request which she refused. Despite his request for her to leave her £40,000 job, the Chief Executive was clearly somewhat conflicted and continued to sleep with the PA, although she said that she now felt she had little choice if she wanted to keep her job, car, flat, etc.
After she rejected a £50,000 voluntary “redundancy” package offer apparently made as a result of pressure on the Chief Executive by his children, he finally phoned her to dismiss her. The conversation did not go well, ending when he told her in a moment of special eloquence “Don’t you f***ing come back”. It is unclear whether he followed this up in writing.
Unsurprisingly, the PA brought proceedings for unfair dismissal, harassment and sex discrimination and was successful on all but the last count. Whilst I have not seen a copy of the judgement, the dismissal of the sex discrimination claim is interesting. It is likely that the Chief Executive’s representative argued that the dismissal was not on the grounds of her sex since, had the Chief Executive had an affair with a male PA, that male PA would have been treated in the same way. This is an argument that has also been successful in previous cases.
It would be interesting to see if a “some other substantial reason” argument was used in relation to the unfair dismissal claim – “I had no choice as my wife was going to leave me and my children would not speak to me”. As David mentioned in his blog, many employers would choose their marriage over their business when threatened by their spouse. If he tried SOSR, it failed. This is not exactly surprising; SOSR dismissals are notoriously difficult to argue. The size of the award also suggests that the unfairness was found to be more than just procedural. This case probably clears up the argument of whether the threat of divorce is going to be enough to justify a fair dismissal, though I am sure it will not be the last time we see it argued. The other issue here which could have been of interest (part salacious, part academic) is how you argue the quantum of a mistress’ injury to feelings when a clearly illicit relationship from which she has personally benefitted very substantially finally comes unravelled. Maybe next time?