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Northern Ireland
Kerrie Smyth v The Personal Representatives of Catherine Chivers (deceased)
Decision Number: Legal Body: Northern Ireland Industrial Tribunal
Published on: 18/03/2016
Issues Covered:
Dismissal Absence & Sickness
Article Authors The main content of this article was provided by the following authors.
John Taggart BL Lecturer and Barrister
Background

The claimant was employed by the respondent (deceased) as her full time carer from 9 April 2013 until 8 December 2014 when the claimant and respondent met and the former was dismissed. She claimed that she was unfairly dismissed and it was accepted by the respondent that it had not followed any aspects of the statutory dismissal procedure. 

The dismissal was later justified by the respondent based on a total breakdown in the employer/employee relationship. It attempted to argue that a number of incidents contributed to this breakdown and that together they amounted to ‘some other substantial reason (SOSR)’ which can potentially justify a dismissal. Some of these included the inappropriate sharing of confidential information, as well as a generally high number of sick days taken. The tribunal was not satisfied that the deceased had established that the relationship had broken down and the dismissal was held to be unfair.

Practical Lessons

Defending a dismissal based on SOSR is regarded as an important residual category of reason for the dismissal of employees. The case law in this area has seen a diverse range of scenarios cited under the heading, but employers are still expected to be able to robustly demonstrate their actions. 

It is true that this ground of dismissal is mostly used for situations where a loss of trust has developed, but in this case there were clear weaknesses in that contention as the incidents pointed to were isolated and did not seem to demonstrate a gradual deterioration in the working relationship. 

Tribunals appear to be increasingly wary of this ‘sweep up’ ground for dismissal as employers seek to use it as a pretext to mask the true reason for the dismissal. A real lack of documentary evidence to substantiate the SOSR ground, as well as long issue-free periods between the cited incidents, were enough for the tribunal to reject the respondent’s argument.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 18/03/2016
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