Ms N Malcolm v Represented by Ms A Stobart Advocate Aquarius Thermal Systems Limited — 2022

Ms N Malcolm worked for Aquarius Thermal Systems Limited as a part-time Bookkeeper/Office Manager from February 2016 and was never given a written statement of particulars of employment. The respondent was owned and run by GM, the claimant’s husband. Their personal relationship deteriorated from 2020 onward, including after the claimant said on 25 August 2020 that she wanted a divorce. In April 2021, following a family-home incident and the claimant moving out with the children, GM said he no longer felt able to work with her and invited her to a meeting to consider whether the employment relationship could continue.

The tribunal found that the true reason for dismissal was not misconduct but GM’s belief that the working relationship had irretrievably broken down. It held that the respondent had established some other substantial reason within s.98(1)(b) ERA 1996 as the potentially fair reason, and rejected the claimant’s case that SOSR was being used as a pretext for conduct allegations. The tribunal relied on the timing of events, the earlier decision not to pursue discipline over the salary increase or holiday issues, and GM’s evidence that he genuinely believed the relationship could not continue.

On fairness under s.98(4) ERA 1996, the tribunal held that the procedure was reasonable in the circumstances. It accepted that the Acas disciplinary code did not apply to an SOSR dismissal based on breakdown in working relationships, and found that the claimant had been told the concerns in writing, invited to a meeting, allowed accompaniment, given an opportunity to propose alternatives, offered the possibility of buying the business, and given an appeal. The tribunal also found that the decision to dismiss was not predetermined and that no viable alternative was identified.

The tribunal concluded that dismissing the claimant for irretrievable breakdown fell within the band of reasonable responses open to a reasonable employer in these circumstances. It therefore dismissed the unfair dismissal complaint. It also held that, because the dismissal was fair, it had no jurisdiction to make an award under section 38 of the Employment Act 2002 for the absence of a written statement of particulars of employment.