This case concerns the issues surrounding dismissing an employee where there has been a breakdown in trust and confidence.
The claimant was the deputy headteacher of a primary school and had a friendship with another teacher, Mr Quinney, who was suspended for possessing indecent images of children. Despite being advised against it by the headteacher, the claimant maintained her friendship with Mr Quinney. In January 2009, the education authority met with the claimant to consider the friendship but concluded that no action should be taken against her. Subsequently, in August 2009, having received complaints from parents about the situation, the headteacher called the claimant to a meeting at which he suspended her for continuing her friendship with Mr Quinney. The claimant enquired as to whether it would make a difference if she agreed to give up her friendship but the headteacher declined to comment.
The claimant attended a disciplinary hearing in December 2009 at which three allegations against her were considered. The first two related to her conduct and the impact that it had on the reputation of the school and the safety of the children and the third was that there had been a complete breakdown in the trust and confidence that the headteacher had in her. The claimant was dismissed and the school relied on the breakdown in trust and confidence as being some other substantial reason (SOSR) for the dismissal, the misconduct allegations having been rejected at the internal appeal stage.
The claimant brought a claim for unfair dismissal which was upheld by the tribunal and the Employment Appeal Tribunal (EAT). In order to dismiss an employee fairly it is necessary to have a potentially fair reason, one of which is SOSR, to act reasonably in treating the grounds as sufficient to dismiss and to go through a fair process. The EAT found that a breakdown in trust and confidence can be sufficient to amount to SOSR but that it must still be reasonable to dismiss in all of the circumstances. The EAT commented that it was appropriate to examine the circumstances leading up to the breakdown in trust and confidence and that many of the principles which are relevant in misconduct cases are applicable.
In this case, the school was criticised for failing to warn the claimant of the potential consequences of her continued friendship with Mr Quinney, for failing to inform her about the comments from parents and for giving the impression that they condoned the relationship in August 2009. The EAT held that relying on SOSR, based on a breakdown of trust and confidence, does not mean that an employer does not need to have proper regard to the ACAS Code.
Employers should bear in mind that even if, as a matter of fact, it can be established that trust and confidence has actually broken down due to the conduct of the employee, they will still have to demonstrate that they have acted reasonably in treating that as sufficient to dismiss. This is likely to involve going through a process of giving warnings and allowing an opportunity for improvement unless the behaviour is so serious as to be akin to gross misconduct. Relying on SOSR should not be viewed as an easier route to dismissal than relying on misconduct and this case demonstrates that the tribunal will have regard to the facts surrounding the breakdown of trust to determine whether the employer has acted reasonably.