In what was a turbulent week for the government, many news outlets led with stories about the Health Secretary Matt Hancock, who had been pictured breaking his own social distancing rules in a secret affair.
Consequently, this sparked calls from across the political spectrum for Hancock to be sacked, with the public left outraged at his perceived abuse of power, breach of trust, and conflict of interest.
So, with employment law and ACAS guidelines in mind, could Matt Hancock have been fairly dismissed for his behaviour?
What are the reasons for fair dismissal?
By law, there are five potential reasons for dismissing someone fairly.
- Conduct – when the employee has done something that’s inappropriate or not acceptable
- Capability – when the employee is not able to do the job or does not have the right qualifications
- Redundancy – when the job is no longer needed
- A legal reason – when the employee cannot do their job legally, for example a lorry driver who’s banned from driving
- Some other substantial reason (SOSR) – a term used for a wide variety of other situations
There is no statutory definition or guidance on what reasons fall within the scope of SOSR, but the reason must be substantial and justify the dismissal of the employee involved.
What does the ACAS Code of Practice say?
The ACAS code advises that before an employer dismisses an employee, they should:
- Believe they have a valid reason for dismissing them
- Follow a full and fair procedure in line with the ACAS Code of Practice on disciplinary and grievance procedures
- Make a decision that’s balanced, consistent, and as fair as possible
The risk of not following the ACAS code could be a claim for unfair dismissal, even if the reason that the employer dismissed them was valid. Furthermore, the procedure followed will be considered if a case reaches an employment tribunal.
While an SOSR dismissal doesn’t necessarily have to follow the ACAS code, employers in these situations should do the following to avoid an unfair dismissal claim:
- Ensure any evidence is as robust and objective as possible
- Ensure any other options are explored thoroughly before proceeding to dismissal
- Ensure the employee is consulted and given full opportunity to make any representations about the decision before it is finally made, and that those representations are fully considered and taken into account
- Give the staff member the opportunity to be accompanied at meetings which may lead to their dismissal by a colleague or trade union representative
Applying the guidelines to Matt Hancock
In most other cases, the act of kissing a colleague is unlikely to be deemed gross misconduct and justify dismissal. However, in the case of Matt Hancock, the publicised footage could be deemed as inappropriate and explicit behaviour, with his employer ultimately deciding on the severity of the misconduct.
One way to evaluate this is to question whether the trust and confidence placed in the employee has been completely undermined, while also considering any mitigating circumstances, length of service, and previous warnings.
Regarding the breach of social distancing guidelines, a single failure to follow these rules is unlikely to justify dismissal in most cases. With the Matt Hancock scandal, it must be considered that he created these rules himself, and that he also held a senior role as Health Secretary.
Therefore, a dismissal in Hancock’s case would most likely be justified by a breakdown in trust and confidence, as well as the significant risk of reputational damage. Both grounds are considered potentially fair reasons for dismissal, falling under the category of SOSR.
Furthermore, an employer in this situation must evidence that by continuing to employ the individual, the reputation of the business would be placed at unacceptable risk.
How should other employers approach SOSR dismissals?
Most cases of alleged misconduct will not involve such high profile and influential individuals.
However, all dismissals must be handled carefully and cautiously, with employers advised to consider preparing a settlement agreement for instances based on SOSR.
By following this approach, an employer can be more confident that they have limited any potential liability attached to the dismissal, while also ensuring that the issue is dealt with promptly.