Mrs P Smith v North West Ambulance Service Trust: 2404385/2024

EMPLOYMENT TRIBUNALS

Case No 2404385/2024

Between

Mrs P SmithClaimant

North West Ambulance Service TrustRespondent

Before

Employment Judge Holmes

Date 24 November 2025

REASONS

[1]By a claim form presented to the Tribunal on 22 July 2024 the claimant claimed that she had been unfairly dismissed by the respondent , with notice , on 25 April 2024. The respondent admitted dismissal, but contended that the dismissal was for the potentially fair reason of some other substantial reason.

[2]The final hearing was listed for 20 and 21 March 2025, and was held in person. It was agreed at the outset that the Tribunal would determine liability only, with remedy, if required, to be determined at a further hearing. 1 of 40

[3]The claimant was represented by Mr Mark Jones, a lay representative, and Mr Alex Jones of counsel appeared for the respondent. They will be referred to as “Mr Mark Jones” and “Mr Alex Jones” respectively. The respondent called Ian Stringer, the dismissing officer, and Lisa Ward , the appeal officer. The claimant gave evidence, and called Natalie Casey as her witness. There was an agreed bundle, and references to page numbers are to that bundle.

[4]The Tribunal heard the evidence for two days, but could not conclude the hearing, which was resumed on 20, 21 and 22 August. The evidence was concluded , and submissions were heard. As there was not enough time for deliberations and judgment, the Tribunal reserved its judgment, deliberating in chambers on 4 September 2025. The Employment Judge apologises for the delay in promulgation of this judgment, occasioned by pressure of judicial business and the need for more than one day of deliberations and drafting of the judgment.

[5]Whilst no List of Issues had been ordered (there had been no preliminary hearing) ,Mr Alex Jones formulated the issues on liability as follows: Unfair dismissal1.1 It is accepted the claimant was dismissed and the effective date of termination is 25 April 2024

1.2 Has the Respondent shown the reason (or, if more than one, the principal reason) for the Claimant’s dismissal. The Respondent will say that the Claimant was dismissed on the grounds of Some Other Substantial Reason (‘SOSR’) pursuant to section 98(1)(b) ERA 1996 (Part X) which is a potentially fair reason.

1.3 If so, has the Respondent shown that the reason relied upon in dismissing the Claimant was of a kind such as to justify the dismissal of the Claimant holding the position which she held.

1.4 If so, was the decision to dismiss within the range of reasonable responses.

1.5 If so, did the Respondent act in a procedurally fair manner in dismissing the Claimant.

[6]Having heard the evidence, read the documents referred to in the bundle, and considered the submissions of both parties, the Tribunal finds the following relevant facts:6.1 On 14 April 1998 the claimant commenced her employment as an Ambulance Care Assistant in the Patient Transfer Service. It is unclear by what entity she was originally employed, but her employment was last transferred to the respondent pursuant to a TUPE transfer in 2016. (There appears to have been two transfers of this service, with the respondent originally providing it, but it then being transferred out to Arriva between 2013 and 2016). At the time of her dismissal her role was, and had been for 26 years, in patient transport, where she would be one of a two person team, driver and assistant, collecting and delivering patients to and from hospitals in the North West. She was based at the Oldham Ambulance Station. 2 of 40

6.2 The claimant is married to Stacey Smith, who was also employed in patient transport , and worked with the claimant. The claimant and her wife wanted to work together, and have their rotas arranged , so that they could have their time off work together, and a better work/life balance.

6.3 This became something of an issue, and the claimant and her wife considered that their Supervisor, Michala Morton, was being obstructive towards them, which resulted in them jointly on 9 December 2021 raising a grievance against Michala Morton (pages 211-213 of the bundle).

6.4 That grievance was submitted on 6 January 2022 (pages 214-216 of the bundle). That grievance does not appear ever to have been formally dealt with.

6.5 The claimant and her wife continued to have issues with Michala Morton in 2022. They sought changes to their rotas , so as to have more time off together, but considered that Ms Morton was blocking their wishes.

6.6 In or around July 2022 a patient who was well known to the claimant and her wife, and other Ambulance Service staff died, and his funeral was on 22 July 2022. The claimant and her wife were unable to attend, although they wanted to, because of their work rotas. They were upset about this, and the claimant took to social media to express her dissatisfaction with this situation, blaming, without naming, Michala Morton, for this situation (see pages 156 to 171of the bundle). This led to Adrian Arthur , the East Sector Manager, messaging her on 22 July 2022, telling her that her recent posts on social media had been brought to his attention , and that an investigation would be carried out (page 172 of the bundle).

6.7 This led, on 10 August 2022 , to an investigation meeting with the claimant (pages 173 to 176 of the bundle) .

6.8 On 15 September 2022 the claimant and her wife raised a further grievance (pages 217-221 of the bundle) about their working arrangements, and how they felt that they were being unfairly treated in the allocation of rotas, and weekend working. They sought fair treatment and a better work/life balance.

6.9 On 6 December 2022 the claimant attended an investigation meeting , into cyber bullying , and breach of social media on her part (see pages 179 to 180 of the bundle).

6.10 Following this, on 25 January 2023 the claimant was invited to a disciplinary meeting on 13 February 2023 , to consider an allegation that she beached the respondent’s social media policy (pages 181 to 182 of the bundle). It is unclear what happened at that meeting, in terms of outcome, but on 27 July 2023 the claimant was invited to another disciplinary meeting on 16 August 2023 (pages 190 to 191 of the bundle) , which she attended.

6.11 That meeting was adjourned to 22 August 2023, (see pages 199 to 210 for the notes) , and on 29 August 2023 the claimant was issued with First Written Warning by Adrian Arthur, effective from 22 August 2023 until 21 August 2024 for breaching the Trust’s Social Networking Policy, and failure to maintain the Trust’s required 3 of 40 standards of behaviour , with reference to the Dignity at Work policy, and relevant codes of conduct (pages 36 to 38 of the bundle).

6.12 On the morning of 11 November 2023 the claimant’s wife, Stacey Smith attacked Michala Morton with a hammer outside her home in the early morning. The claimant played no part in this attack, having awoken to find that her wife had left the house. She had no knowledge of what she intended to do, and only learned of the attack later than morning , after her wife had been arrested for it.

6.13 On 12 November 2023, however, as a result, the claimant believes of what Michala Morton had told the Police, the claimant was herself arrested in relation to allegations of harassment and threats to kill Ms Morton.

6.14 Following her arrest the claimant was released , to re-attend the Police Station on 9 February 2024, subject to bail conditions , which were not to contact Ms Morton, not to attend any premises where she may come into contact with her, and not to contact directly or indirectly any employee of the respondent. Her wife remained in custody, and the effect of the claimant’s bail conditions were that she could not go to work.

6.15 On 13 November 2023 the claimant was suspended on full pay (page 39 of the bundle), reference being made to this being because of her arrest for allegations of harassment and threats to kill Michala Morton.

6.16 On 8 December 2023 James Bateson , Operations Manager, invited the claimant to a meeting on 15 December 2023 to discuss the concerns about her arrest and bail conditions (pages 41 to 42 of the bundle). On 14 December 2023 the claimant’s suspension was reviewed, and extended , and the meeting put back to 19 December 2023 (pages 43 to 44 of the bundle).

6.17 On 19 December 2023 the investigation meeting between James Bateson and the claimant was held. The notes are at pages 45-51 of the bundle. The claimant was accompanied by Natalie Casey , a work colleague, and Hayley Stirling of HR supported James Bateson.

6.18 After the meeting the notes were provided to the claimant for her to correct or alter. She made some corrections which can been in handwriting on the copy in the bundle. Whilst she made corrections to pages (using the bundle numbering) 45, 46, and 47, she made no others, and did not make any where the notes record James Bateson using the terms “some other substantial reason” or “SOSR”. The Tribunal accepts, on a balance of probability, that those terms were used, but equally accepts that the claimant and her witness Ms Casey probably did not take in, or question, what those terms meant.

6.19 The respondent operates a management review process where potential disciplinary actions are considered by a Panel, before being processed for action. This is known as the “IRP” panel.

6.20 On 12 January 2024 the IRP panel considered the potential disciplinary action against the claimant . On that Panel sat Lorraine McConnell, Dan Ainsworth, Ian Stringer and Joanne Jones. They considered , in outline only, the investigation that 4 of 40 had been carried out by James Bateson. It is unclear what, precisely, material was available to that Panel, but it is likely to have been the first version of the Management Statement of Case document (pages 63 to 65 of the bundle), which ended with a recommendation that the claimant’s employment position be considered at a formal hearing, and that the test of dismissal “for some other substantial reason” had been met.

6.21 The outcome of the IRP panel, dated 12 January 2024, in which the Panel agreed with the recommendations is at page 52 of the bundle. This was a purely internal document, and not shared with the claimant.

6.22 On 31 January 2024 the claimant was sent a suspension review letter (pages 53 to 54 of the bundle) , in which her suspension was extended.

6.23 On 9 February 2024 the claimant was informed bail was to be extended until 3 May 2024.

6.24 By letter of 9 February 2024 (page 55 of the bundle, but incomplete as this is only the first page) the claimant was invited to a formal hearing on 20 February 2024. She was provided with a copy of the management statement of case, and warned that the outcome could be that her employment could be terminated on the basis of “some other substantial reason. That statement of case was in the form at pages 63 to 65 of the bundle, i.e the same form as was presented to the IRP panel.

6.25 In section 4, the “Conclusion” section, James Bateson said this: “PS has been on suspension since 13 November 2023 and since then has been absent from her contractual role. Management considers it unreasonable to retain PS in employment for a further undefined period due to the seriousness of the bail conditions as PS continues to be unable to fulfil her contractual obligations. Management also felt relevant to include that PS has a first written warning on her file (Appendix 2) for inappropriate behaviour and Facebook post about MM which led to the following misconduct breaches:

• 3.10 Breach of the Trust’s Social Networking Policy

• 3.9 Failure to maintain the Trust’s required standards of behaviour, with reference to the Trust’s Dignity at Work policy and relevant codes of conduct. Additionally, in view of current live warning and the seriousness of the arrest and bail conditions, management considers it unreasonable to retain PS in employment for a further undefined period. This has led to a fundamental breakdown in its trust and confidence in PS as an employee, and that public confidence in the North West Ambulance Service would also be seriously undermined should she continue to be employed by the Trust. “

6.26 At that time the proposed Chair of the meeting was to be Dan Ainsworth, who had also sat on the IRP which had accepted the recommendations to proceed to a disciplinary meeting. 5 of 40

6.27 That meeting, however, was cancelled , due to the claimant’s union representative not being available. It was re-scheduled for 18 March 2024.

6.28 On 22 February 2024 the claimant submitted a medical certificate stating she was unfit to work. She was referred to Occupational Health, to confirm her fitness to engage in the formal process.

6.29 On 12 March 2024 Greater Manchester Police confirmed to the respondent, but not to the claimant , that the criminal case against the claimant was not being pursued, and her bail conditions were lifted (page 68 of the bundle) .

6.30 The re-scheduled meeting on 18 March 2024 was cancelled due to the claimant’s ill-health. The claimant’s union representative , James Bull, prepared for this hearing a Statement of Case for Paula Smith (pages 70 to 73 of the bundle). In it he said this: “As confirmed in the management statement of case, Paula has been referred to a hearing to consider dismissal solely on the grounds that her bail conditions are incompatible with her current role, and not in relation to misconduct or gross misconduct.”

6.31 On 26 March 2024 the claimant received an email from James Bull (page 147 of the bundle) , her union representative confirming that he had heard that her bail conditions had been lifted. He was aware that the respondent intended to proceed with the meeting on 19 April 2024, and expressed some concern that it was still going ahead with this when the “premise for it no longer exists”.

6.32 By letter of 2 April 2024 (pages 74 and 75 of the bundle) the meeting was indeed further re-scheduled, and the claimant was informed that the GMP had confirmed to the respondent that her bail conditions had been lifted. The claimant was told that this fact would be included in the SOSR report, and shared with the panel. 6.31 This letter, however, continued : Notwithstanding this, and as set out in the SOSR Report, the seriousness of your arrest gives rise to concerns about whether you could remain employed by NWAS in a role such as yours in which you are public facing and have access to patients. As stated in the SOSR Report the panel will consider whether this leads to a breakdown of trust and confidence in you as an employee and has or could undermine public confidence in the service. 6.32 The letter went on to re-schedule the meeting for Friday 19 April 2024, and to state that it would now be chaired by Ian Stringer. 6.34 The trial of Stacey Smith for the attempted murder of Michala Morton was listed to commence on Monday 22 April 2024. It is unclear when the respondent became aware of this, but as Michala Morton was to be a prosecution witness, and would have been notified well in advance of this hearing date, and the GMP had informed the respondent of the lifting of the claimant’s bail conditions, and were likely to be liaising with the respondent, the Tribunal finds that it is more likely than not that well before the meeting scheduled for 19 April 2024, the respondent knew that the 6 of 40 trial of her wife was due to commence the following Monday. In any event, it is clear from the notes of the meeting on 19 April 2024 that Ian Stringer and HR were aware that the trial of the claimant’s wife was to commence the following week. 6.35 On 3 April 2024 the claimant received an email from GMP confirming their decision to take no further action, and that her bail conditions lifted (page 150 of the bundle), and apologising for the lack of an update. 6.36 On 19 April 2024 the re-scheduled SOSR meeting was held. The claimant was present, with James Bull , her union representative. Ian Stringer was the chair, Becky Hunter was HR Support, and Lara Lawson was the note taker. 6.37 The version of the Management Statement of case for this meeting , which is at pages 65A to 65C of the bundle differs slightly from the previous version submitted with the original invitation letter and as submitted to the IRP. 6.38 The main difference is that a new box 3.2 has been added (page 65C of the bundle) to state that on 13 March 2024 GMP had confirmed that the claimant was no longer under investigation and that her bail conditions had been lifted. No other changes were made to the Conclusion section 4.1, which continued to state that : “Management considers it unreasonable to retain PS in employment for a further undefined period due to the seriousness of the bail conditions as PS continues to be unable to fulfil her contractual obligations.” And: “Additionally, in view of current live warning and the seriousness of the arrest and bail conditions, management considers it unreasonable to retain PS in employment for a further undefined period.” 6.39 The notes of this meeting are at pages 76 to 86 of the bundle. At the start of the meeting Ian Stringer said this: “It is worth noting that both the management case and your case predominantly relate to the bail conditions which we are aware are no longer in place and that there is no further action to be pursued by the police. We are here to consider how the arrest and bail conditions have affected trust and confidence in you and whether your employment can continue.” 6.40 The process followed in the meeting was that James Bateson presented the management case, which had been circulated (in its latest iteration) beforehand, and was questioned by James Bull on behalf of the claimant, and by Becky Hunter and Ian Stringer, then James Bull presented the claimant’s case. That included the claimant reading out of a statement that she had prepared (at page 80 of the bundle) which had been included in the Statement of Case that had been prepared for the meeting scheduled for 18 March 2024, but which had not taken place, and which had been overtaken by the subsequent release of the claimant from any bail conditions , and confirmation that there would be no further action taken against her. He then resumed making submissions on behalf of the claimant. 7 of 40 6.41 For reasons that are not entirely clear, whilst James Bateson and Hayley Stirling, who was there to support him, had no questions , Becky Hunter, HR Support for Ian Stringer, then set about asking the claimant a number of questions (pages 81 to 83 of the bundle). 6.42 These focussed very heavily upon relationships in the workplace, how the claimant might reintegrate, mediation with Ms Morton, and reputational damage. 6.43 After a short break , with Becky Hunter confirming that she had no more questions, Ian Stringer resumed the meeting. He said this : We are here to consider the feasibility of your continued employment under SOSR, not your conduct specifically, so the issues we are considering are centred around trust and confidence in you as an employee and the feasibility of reintegrating or reintroducing you back into the workplace so one of the considerations that we need to make is that of redeployment in another area or role. In making those considerations we need to consider your line manager and what that this could look like, and the implications of this accepting that some things are foreseeable whilst other things are not, for example, we know that the trial starts next week and, as has been pointed out, there’s been no media attention on this yet, but we don’t know whether this will change once the trial starts so we can’t tell yet what may be reported that relates to you that gives rise to reputational risks. Bearing this in mind, we need to look at the impact of the trial and probably look at what would be the impact of some other area. If those are not working or suitable redeployment options, we will look your ability of skills set but this is not a simple thing to do right now. My immediate concern, and I know what you are saying from your point of view, is that with mediation with MM you could reintegrate back into work, but it is for us as a panel to consider whether this is reasonable in terms of trust and confidence, and the impact on your work colleagues, as there may be implications that follow you as a result of your association with your wife and what information may be reported in the media once the trial starts which is a reality. The organisation has to be satisfied that we can deliver the business in a safe and effective way, and that is what we are here to consider as a panel, we are not here to consider your conduct in relation to this incident specifically, our considerations centre around the feasibility of your continued employment due to the seriousness of the allegations you were arrested for and how that relates to trust and confidence in you and how that might be managed if the decision was to continue with your employment. 6.44 Ian Stringer continued to discuss redeployment options with the claimant , and then (at page 85) he said : I understand, I am not trying to make this into a redeployment conversation, but you could work somewhere else, these are the things that I have to consider. Today in some respect is to gain information from all the parties and this information is new to me. The statement of case is in relation predominantly to bail conditions so the reason and rationale for asking these questions is to determine what we can look into 8 of 40 should it be deemed appropriate. It is not directly asking you about redeployment, it is about the things that you would need to reconsider, for example travelling, new skill sets, and you would have to deal with all of those scenarios and deem if this is feasible given all the issues that surround this situation. 6.45 James Bull then went on to ask the claimant whether she would accept any support and guidance from the respondent in relation to redeployment, and she confirmed that she would. The next stage was summing up, and James Bateson had nothing to add. James Bull, however, did sum up, briefly, and the claimant declined to say any more. 6.46 Ian Stringer then said this (page 85 of the bundle) : “..there is a lot of information I have heard today that is new to me and I am not able to give a view and I would seriously consider what the options are and if they are feasible. In relation to this particular case. I am not going to come to a conclusion today and rather than go to conclusions I am going to adjourn today. Thank you for your co-operation today. I will write to you within 7 working days” Becky Hunter then said: “It is not being held under the disciplinary policy; however, we will provide this within a reasonable time frame.” which was followed by Ian Stringer saying: “As I say a lot of information has come out of today so, on balance, I think I need to take the time to consider it all fully.” 6.47 The meeting ended at 11.49. 6.48 On 22 April 2024 , the Monday after the meeting with the claimant on the preceding Friday, and the day that the trial of Stacey Smith commenced, Ian Stringer prepared an outcome letter for the claimant. It is at pages 90A to 90D of the bundle. It was never sent to the claimant. It is signed by Ian Stringer. 6.49 The first two pages of this letter are largely a narrative , setting out the history of the matter, a summary account of the meeting, and the points made by each side in it. At the bottom of the second page (page 90B of the bundle), however, Ian Stringer sets out his decision, and his reasons for it. The first point he makes is that, whilst the criminal case against the claimant was dropped and her bail conditions lifted, this did not “negate the seriousness of the situation and the trust and confidence issues that arise from it”. 6.50 He goes on to refer to the conduct issues involving the claimant in the preceding 12 months concerning behaviours directed towards Michala Morton. He referenced how the claimant’s use of social media demonstrated a serious lack of judgment, and had the potential to bring the Trust into disrepute. 6.51 In the next paragraph Ian Stringer said this: 9 of 40 “The closeness of your relationship with your wife, who stands trial for the serious and violent assault on an NWAS manager, cannot be ignored and it is difficult to assure ourselves that you had no notion of your wife’s intentions.” 6.52 He continued: “The trial which commences on 22 April 2024 will be very much of interest to the public and therefore by association you and NWAS as your employer will be linked to it. This causes potential reputational issues which we are not able to overcome, with other staff members, managers, patients and the general public.” 6.53 Ian Stringer then went on to discuss the possibility of the claimant reintegrating into the Trust. He considered that she could not do so in the Greater Manchester area, as contact with Ms Morton could not be ruled out. He also said that he did not believe that a patient or public facing role would be appropriate. He considered that all this would limit the options available. The only suitable role he could identify was in Broughton , approximately 1 hour from the claimant’s home address. This, however, would not be a driving role , such as the claimant had carried out for 26 years, and he did not believe she would have the requisite skills for it. 6.54 He went on to day this (page 90C of the bundle) : “That being said, I have reached the conclusion however, that even if there were a role available - which there is not - I believe the breakdown in trust and confidence is such that your employment with the trust cannot continue. The seriousness of the allegations you faced, coupled with your relationship to Michala’s attacker, the public nature of the trial that is due to commence this week, and the wider impact of this upon the Trusts reputation, is not something that the Trust can overcome.” 6.55 He went on then to confirm his decision to terminate the claimant’s employment on the basis of “Some Other Substantial Reason”, and how she would be paid in lieu of notice. 6.66 That letter, of course, was never sent to the claimant, but was discovered by her as the result of a Subject Access Request. As at 22 April 2024, therefore, the claimant was unaware that Ian Stringer had decided , between 11.49 on Friday 19 April 2024, and some time on 22 April 2024, to dismiss her. 6.67 There was no evidence before the Tribunal of Ian Stringer making any further enquiries, or considering any other information before making his decision, which the Tribunal is satisfied, he had done by no later than 22 April 2024. 6.68 The trial of Staecy Smith commenced on 22 April 2024. The claimant , who was not, in fact, going to be a witness, and hence could be present in Court, was present during the hearing on 25 April 2024. On Wednesday 24 April, the third day of the trial, Michala Morton stated in evidence that the claimant was an “ex – employee”. The claimant was unaware of this until the flowing day, when she attended the trial. 6.69 Michala Morton had been supported at the trial by Adrian Arthur, the Sector Manager. When and how Ms Morton had learned that the claimant had been 10 of 40 dismissed is unclear, but the Tribunal is satisfied that she had done, and must therefore have been so informed before the claimant was. 6.70 The claimant was actually formally informed of her dismissal by a letter dated 25 April 2024 (pages 87 to 90 of the bundle). This was sent by post, not email, so may not have been received by the claimant until after that date. Whatever the position, the Tribunal fully accepts that she first learnt of her dismissal from hearing Michala Morton refer to her in evidence at the trial as an “ex-employee”. 6.71 This version of the dismissal letter, whilst similar to the first, unsent, one, of 22 April 2024, is not identical to it. It is a little longer, and whilst the first two pages are very similar, it is the last two pages , where the decision is being explained where there are differences between the two versions of the letter. 6.72 To start with, the second letter contains the following (page 89 of the bundle) : “The panel’s role is not to reach findings about the reported incident; it is to determine the consequences and implications of your arrest in relation to the incident. I carefully considered the evidence presented by you and Management and concluded that;

• You were arrested and placed under bail conditions whilst the Police investigated an allegation made against you of harassment and threats to kill your Operations Manager, Michala Morton. Your arrest followed the physical and serious assault upon Michala Morton, your operations manager, by your wife.

• The panel accepted that the criminal investigation against you as an individual would not be pursued further by the Police; but this does not negate the seriousness of the situation and the fact of your arrest which related to your operations manager. This reported incident undermines the trust and confidence that is required from our employees; these are reflected in the NWAS Values and are and in line with own vetting and recruitment processes. Specifically, the concerns which warranted your arrest question the feasibility of your continued employment with the Trust, given your public facing role of Ambulance Care Assistant (ACA) which also gives you direct access to patients. You made it clear that you did not condone the actions of your wife. However, your ongoing association with this incident by your arrest means that if you returned to your role, or an alternative role, patients, staff and the public would not have the required degree of trust in the service and those who operate it; put simply, your known arrest and association with someone who has been charged with attempted murder of your operations manager undermines that trust. The relationship with your wife, who will stand trial for the serious and violent assault and attempted murder of your operations manager, cannot be ignored. It is not for the panel to reach findings on what happened during that incident and your involvement or awareness of what was to take place; however, the fact that you were arrested by the Police in relation to the incident, and for which your wife has been charged, is extremely serious. I believe that there is a loss of trust and confidence in you as an employee and your employment has undermined confidence in the service we offer. 11 of 40 The criminal trial is scheduled to take place on 22 April 2024; it is anticipated that there will be public interest in it and may be reported in the media/social media; by association, you and NWAS are likely to be linked to the incident and this may be reported. This causes potential reputational issues for the Trust which we are not able to overcome, with other staff members, managers, patients, and the general public.” 6.73 Ian Stringer continues on to consider the issues raised about the previous behaviours of Ms Morton, which were alleged to be potential bullying or discrimination, of which he said the panel were unaware. These had not been considered, however, because even if substantiated , they did not “detract from your arrest in relation to the incident or the consequences of this” 6.74 He went on to say: “I considered what sanction would be appropriate in light of this finding, in particular in light of your long service. Whilst the NWAS Disciplinary Policy has not been pursued, the fact that you are subject to a live disciplinary sanction for behaviours directed towards Michaela [sic] Morton is relevant to this SOSR process.” 6.75 After discussing whether the claimant could undergo some form of mediation with Ms Morton, or could reintegrate into the Oldham team, he said: “Your arrest in relation to the reported incident presents a breakdown in trust and confidence at a local level with your operations manager which would be difficult to restore.” 6.76 Ian Stringer then went on to set out his reasons for not allowing the claimant to move to another location within NWAS. He considered that any return to the Greater Manchester area would be ruled out as Ms Morton operated throughout that area. He went on, as he had done in his letter of 22 April 2024 to rule out any other non – patient or public facing roles within the claimant’s travelling radius. He rounded off this paragraph with: “Moreover, I concluded that even if this was suitable for your skill and circumstance, you would still be required to engage with other staff and I could not be assured that this would be appropriate in light of the breakdown of trust and confidence in you at an organisational level as an employee of NWAS (in any capacity).” 6.77 The letter concluded with the details of the payments that would be made to the claimant , and how and when to raise any appeal against the decision. 6.78 On 25 April 2024 the trial of Stacey Smith was stopped, by reason of the illness of counsel. No reports of the proceedings had appeared in the Press at that stage. 6.79 By email of 1 May 2024 from James Bull , the claimant appealed against her dismissal (page 91 of the bundle). The grounds of appeal were stated as: We wish to appeal on the following grounds: 12 of 40 1. That the hearing chair, Ian Stringer (Assistant Director of Compliance) was not an appropriate or impartial choice of chair in the SOSR process due to his personal relationship with Michaela Morton, operations manager 2. That the decision to dismiss Paula Smith was outside of the band of reasonable responses NWAS could have taken in response to the circumstances given that:

a. The allegations in relation to which Paula Smith was arrested were investigated by the police, who concluded they were unfounded, and there was no case to answer

b. Paula Smith condemns the actions of her wife and played no part in her wife’s assault of Michaela Morton, but yet is unfairly conflated and linked with this event in the outcome letter dated 25th April

c. There is little evidence that reputational damage for NWAS would result as a consequence of Paula Smith’s continued employment

d. Paula’s record of accepting responsibility for a previous mistake and seeking to resolve relationship difficulties constructively is at odds with NWAS’ assertion that there has been an irrevocable breakdown in trust and confidence as a result of her arrest, given that her arrest resulted in no further action being taken and a decision there was no case to answer. 3. That the difficulties in reintegrating Paula Smith into the service following her suspension are overstated and misrepresented in outcome letter dated 25th April 6.80 The appeal was acknowledged by letter of 23 May 2024 (page 93 of the bundle) from Kelly Evans, and the appeal hearing was arranged for 16 July 2024. It was to be heard by Lisa Ward, Director of People, and Angela Wetton, Director of Corporate Affairs , advised by Marshall Kumawu, HR Manager. 6.81 On 1 July 2024 the claimant posted on Facebook the following (page 108 of the bundle): “Well that's the icing on the cake all it needs is the fucking cherry. Thanks chucky for ruining my life and my marriage, and I thought things couldn't get any worse, 26 years of service down the drain and now 9 years of my life wasted” The reference to “chucky” is to Michala Morton, and the text was followed by 9 emojis of crying faces. The claimant was clearly venting her anger at her dismissal (amongst other things) for which she was blaming Michala Morton. 6.82 Ian Stringer prepared the Management Statement of case for the appeal (pages 95 to 103 of the bundle) dated 16 July 2024, although probably prepared before then. In it he addresses the specific grounds of appeal advanced by the claimant . 6.83 In relation to Ground 1, that he had a previous personal relationship with Michala Morton, so was not an appropriate or impartial choice of chair for the claimant’s dismissal meeting, he set out (pages 100 and 101 of the bundle) his knowledge of , and previous dealings with Ms Morton. Whilst he had known her since 2007 or 13 of 40 2008, they had been peer colleagues until 2013 when , following the TUPE transfer to Arriva she became an employee of Arriva, whilst he remained employed by the respondent. Between 2015 and 2022 he accepted that he then had managerial responsibility for her, but was not her direct line manager. As he was redeployed in April 2022, he had not had any responsibility for her, and only incidental contact with her. 6.84 In relation to Ground 2, that the decision to dismiss the claimant was outside the band of reasonable responses, which was subdivided into sub-paragraphs (a) to (d), his responses were: a. The allegations in relation to which Paula Smith was arrested were investigated by the police, who concluded they were unfounded, and there was no case to answer : He had not come to the decision to dismiss lightly. He did take account of the fact that there was to be no criminal investigation of the claimant, and her length of service, and had explored alternatives to dismissal. He had decided, however, that the seriousness of the overall situation was too great to overcome, i.e the claimant had been arrested and placed under bail conditions whilst GMP investigated allegations of harassment and threats to kill Ms Morton, following the serious assault upon her by her wife. He considered the concerns to have been so serious that they undermined the trust and confidence that the respondent was required to have in the claimant in her role which gave her direct access to patients. b. Paula Smith condemns the actions of her wife and played no part in her wife’s assault of Michaela Morton, but yet is unfairly conflated and linked with this event in the outcome letter dated 25th April: Ian Stringer referred in his response to this ground to the allegations made by Ms Morton that the claimant had made threats to kill her and this had led to the claimant’s arrest, and release on bail. Whilst he accepted that the claimant did not condone the actions of her wife, he considered that these factors directly related to one another. He went on to say how the claimant’s arrest and association with her wife facing a criminal trial meant that there would be an ongoing association with this incident to the extent that the respondent, its staff and the public could not have trust and confidence in the claimant in substantive role or an alternative role. c. There is little evidence that reputational damage for NWAS would result as a consequence of Paula Smith’s continued employment Ian Stringer’s response to this was that although the criminal trial in April 2024 had been halted , and had been rescheduled, there would be considerable public interest in the media or social media, and he considered it foreseeable that “by association” the claimant and the respondent would be likely to be linked to the incident , which could cause reputational issues for the respondent with other staff members, managers, patients and the general public. d. Paula’s record of accepting responsibility for a previous mistake and seeking to resolve relationship difficulties constructively is at odds with NWAS’ assertion that there has been an irrevocable breakdown in trust and 14 of 40 confidence as a result of her arrest, given that her arrest resulted in no further action being taken and a decision there was no case to answer. Ian Stringer’s response to this ground of appeal (page 102 of the bundle) was to refer to the previous history of the grievance and the issues raised by the claimant and her wife against Ms Morton. He also went on to say this: “……..and although GMP have confirmed that they have ceased their criminal investigation into these allegations, it is highly likely that Michala Morton is at odds with that decision and still believes the allegations to be true.” The Tribunal takes the reference to “the allegations” as being the allegations that Ms Morton made to GMP about the claimant which led to her arrest. He went on to state that he did not believe that Ms Morton would agree to a mediation now, and he could not therefore see how the claimant could be reintegrated into the Oldham team. He went on to say that he also did not believe that the claimant could return to duties anywhere in Greater Manchester as a viable option, as this would “certainly cause disruption and distress to the team”, not least to Ms Morton. He went on to repeat his assertion that it was not possible to ensure trust and confidence amongst the respondent’s employees or the public by placing her in any public facing roles. 6.85 Finally , in response to Ground 3: 3. That the difficulties in reintegrating Paula Smith into the service following her suspension are overstated and misrepresented in outcome letter dated 25th April 2024 Ian Stringer’s response (page 103 of the bundle) was that in considering the feasibility or reintegrating the claimant , her skill set and employment history, as an ACA for a long time, with minimal administrative requirements were discussed. Her travel to work time of 40 minutes had also been considered, The nearest non – patient facing role he had been able to find was an hour away, and would involve wearing the NWAS uniform and liaising with other staff members. He did not consider these to be appropriate, and in any event , as she would still be required to engage with other staff, he could not be assured that this would be appropriate in any capacity. 6.86 The appeal hearing was held on 16 July 2024. It was chaired by Lisa Ward, the Director of People, with Angela Wetton, Director of Corporate Affairs, supported by Marshall Kumawu, of HR. The claimant attended and was represented by James Bull of UNISON, Ian Stringer presented the management case, and he was again supported by Becky Hunter of HR. The notes of the appeal are at pages 116-136 of the bundle. 6.87 After introductions and preliminaries, James Bull opened by presenting the claimant’s case, and going through her grounds of appeal. He expanded upon ground (1), in relation to concerns that Ian Stringer may have had a friendship with Ms Morton. 6.88 In support of grounds 2(a) to (d) he said this (page 118 of the bundle): 15 of 40 “PS’s association with the arrest has been damaging to PS but this is not an indication of any wrongdoing on her part and there has been no behaviour that she has exhibited that has been sustained in any point. The panel believed people did not have trust and confidence in her but this is not our view and there is no evidence to suggest that other staff members have lost trust and confidence. Her relations with other staff have always been good. There have been no allegations sustained and PS did not play any role in the assault. She has condemned the actions of her wife and maintained that throughout. We do not feel that it is reasonable for PS to be punished by the actions of her wife. There is no public association between PS and SS, and whilst we recognise it is possible that during the trial there may be some public interest we think it unlikely that the association would become public. We do not feel that there is a likelihood that the charges were dropped if there was a risk to MM or NWAS. In fact, I think it would be very unlikely that PS would be involved given that when the police had investigated that there was no case to answer.” And: “PS has given no indication or reason which should undermine the trust and confidence of her employer. PS’ wife SS assaulted MM, but PS did not play any role in this and an investigation into allegations connected with the assault revealed there is no case for PS to answer. No charges have been brought against her.” 6.89 He went on to refer to the claimant’s long employment history, and the first written warning she had received, for which she had accepted responsibility. 6.90 In relation to ground (3), the difficulty in reintegrating the claimant into the service, James Bull submitted that Ms Morton was an operations manager for a specific area of Manchester, so there were other parts of the service where the claimant would not come across her. He also pointed out that Ian Stringer’s observations about the viability of any alternative positions for the claimant had not been discussed with her, or himself. He concluded , in response to Ian Stringer’s lack of assurance that the claimant could engage with other staff, due to the breakdown of trust and confidence, with this: “The reasons were unsubstantiated and not withstanding of the circumstances, anyone can be subject to a false allegation and particularly in the health service. The allegation existence should not be a reason to cause a detriment to somebody in that way and taking into consideration the police have investigated this fully and that there is no case to answer; we feel that it is equally true that in terms of staff engagement, we can work as part of a team within NWAS and that there are no other incidents apart from the knowledge of the social media. PS would be able to go back to working with staff constructively and there is no issue in that regard.” 6.91 There ensued questions to the claimant from Ian Stringer, Lisa Ward, and Angela Wetton, Panel member, mainly relating to the relationship between Ian Stringer and Ms Morton, and the previous history between the claimant and Ms Morton. In response to a question from Angela Wetton about any other social media posts, the 16 of 40 claimant volunteered the information (page 121 of the bundle) that she had made a post (she did not say when) in which no threats had been made, and no names mentioned, but she had referred to this person wrecking her life. 6.92 Following this (page 121 of the bundle) Marshall Kumawu , the Strategic Human Resources Manager, there as HR Support, then asked the claimant to clarify the (Facebook) post that she had made about wrecking her life, and who “Chucky” was. This was a reference to the post made on 1 July 2024, referred to in para. 6.81 above. The claimant stated that this was a private post. Whilst this document was not, as far as the Tribunal can see, produced in the appeal hearing, Lisa Ward says in her witness statement (para. 18) that a copy of the post was “made available to the panel at the appeal hearing”. It is very unclear when and how this occurred. There is no reference to the document (in a screen shot or any other form) being produced in the course of the hearing, and it was not part of , or mentioned in. the Management Statement of Case for the appeal (pages 95 to 107 of the bundle). Marshall Kumawu, however, must have had sight of it, because he asked the question about “Chucky”, a term the claimant did not use in the meeting. 6.93 There is no evidence that the claimant had been provided with any prior warning that this post would be referred to in the appeal hearing, or that a copy of this post was provided to her , or asked for, ahead of the hearing. 6.94 Lisa Ward and Angela Wetton continued to ask questions of the claimant , and then the hearing moved on to the management case, presented by Ian Stringer. He referred to, and expanded upon his written statement of case. He was then questioned by James Bull for the claimant, firstly about his previous dealings with Ms Morton, and then about his decision generally. 6.95 At one point (page 129 of the bundle) the claimant herself asked Ian Stringer a question, namely, who had informed Ms Morton that she had been dismissed, as she had announced this in the Court hearing before the claimant had herself been told. Ian Stringer denied that it had been him, and agreed that Ms Morton should not have been told before the claimant was. 6.96 Angela Wetton and Lisa Ward then asked Ian Stringer more questions, until 15.31, when there was a short break. On resumption James Bull summed up for the claimant , Ian Stringer did so for the management. 6.97 At the conclusion of the hearing the claimant again asked Ian Stringer if he had seen her Facebook post, but he was not sure what she meant (page 135 of the bundle). There were some further exchanges, but it is unclear what each person was referring to. 6.98 Whilst the intention had been to deliver an outcome that day, after an adjournment of just over an hour, the Panel reconvened to announce that they could not make a decision that day, but would reconvene, and provide an oral decision, or could provide one in writing. The claimant opted for the latter. 6.99 On 22 July 2024 Lisa Ward issued her Appeal Outcome Letter (pages 109 to 115 of the bundle). This is a very full letter, but the first 5 pages largely summarise each party’s case before the appeal Panel. At some time between the appeal hearing (or 17 of 40 possibly even before it) and 22 July 2024, Lisa Ward must have seen the claimant’s Facebook post of 1 July 2024, and she was clearly aware by the time she wrote to the claimant that day of the fact that it post – dated the dismissal. On page 3 of this letter (page 111 of the bundle) Lisa Ward says this: There is evidence of you previously having used social media platforms to criticise MM; you have posted further comments about MM after your dismissal which also undermined your assertion that the risks of association were slight. 6.100 The summary of the decision , and the reasons for it, are at pages 114 and 115 of the bundle, where Lisa Ward says this: “Summary of the appeal panel’s decision Having taken time to reflect on the information given at the appeal hearing, we considered all the evidence presented, and for the reasons explained above, the appeal panel is satisfied that the hearing officer’s view that there had been a fundamental breakdown in trust and confidence was reasonable and appropriate.

• Your wife has been charged with serious criminal charges arising from the attack on MM which will be subject to a public trial. Whilst no criminal charges were ultimately brought against you, you were arrested in respect of allegations of harassment and threats to kill MM. There was a widely known and longstanding animosity and breakdown in relationships with you, your wife and MM. These matters are serious and have impacted on trust and confidence in you, it is reasonable to assume that these matters/events will continue to be associated and linked to you in people’s minds.

• In the appeal hearing, you demonstrated a lack of insight and reflection about the wider impact of the incident on colleagues and the service, beyond yourself and MM. We then had to consider whether the loss of trust and confidence was retrievable and whether therefore, an alternative to dismissal and reintegration into the service could be/should have been further considered.

• The panel was satisfied that these issues had been explored at the original hearing

• It was clear that the relationship with MM was not retrievable – the animosity displayed by you towards MM in the hearing was evident and supported by the recent social media post. The appeal panel was satisfied that any attempts at mediation between you and MM would be counterproductive and potentially create further damage.

• We were also concerned given the more recent social media post, that you would not be able to behave professionally or refrain from further comment on the issues and your feelings towards MM. 18 of 40

• There was evidence that matters were already widely known within NWAS, and you were associated with the wider incident. There was no confidence given the lack of insight displayed that reintegration could be managed without disruption to the wider team and without the issues and the incident being known by your colleagues.

• Given the view we have, that you will continue to be associated with the incident, we also need to consider the messaging to staff about their safety in work given the association with a serious criminal charge affecting a colleague at work. NWAS takes a zero-tolerance approach to any violence against our staff.

• We also need to consider the views of the victim of the assault and the wider management team in having to manage the reintegration and potentially support both parties through the impending trial. This, in our view, would not be feasible or reasonable.

• On balance, we therefore agreed with the hearing officer’s conclusion and decision that trust and confidence in you had been lost and could not be restored. Reintegration into the workplace was not an option which could be considered, given the seriousness of the circumstances and the detrimental impact likely to ensue. Finally, we considered the reputational risks to the organisation.

• As outlined above, the close association of your wife, as the alleged perpetrator of the assault, the animosity shown by you towards MM prior to the assault and your arrest will inevitably link you to the actions of your wife, a former NWAS employee. Her actions towards MM are going to be subject of a criminal trial and it is reasonable to conclude that there will be public interest. This connection between you and the assault is likely to be made by the media and the public as such the appeal panel are satisfied that this poses a risk of reputational damage by undermining the public’s confidence (and that of your colleagues) in NWAS and the service it provides. Having taken into account all of the evidence and the information provided at the hearing we were satisfied that the decision to dismiss on grounds of Some Other Substantial Reason was a reasonable one in the circumstances of the case.” 6.101 The claimant’s appeal was accordingly rejected. 6.102 On 24 or about September 2024 the re - trial of the claimant’s wife, Stacey Smith, was heard at Manchester Crown Court. 6.103 In the press reports of the trial the claimant was not named, although reference was made to Stacey Smith’s wife, and to the dispute that which they both had with Michala Morton which was the background to the attack. No photograph of the claimant appeared in any press reports. 6.104 The claimant did not give evidence at the trial , but did, in written form, provide a character reference which was advanced in mitigation. Stacey Smith was convicted of attempted murder, and sentenced to 20 years imprisonment, with an extended 19 of 40 licence period of 5 years. The claimant and her wife have now ceased their relationship, at the instigation of Stacey Smith.

hearing

[7]Those then are the relevant facts. There was little disagreement on the facts, and nothing in this judgment turns upon the credibility of any witness or party. The submissions.

[8]The parties made submissions. For the respondent, Mr Alex Jones had prepared a written Legal Skeleton , which is available on the Tribunal file, and need only be summarised here. In summary, it sets out the issues from the Opening Note, (as at para. 5 above) , then the relevant legal principles, and then the respondent’s submissions in respect the issues to be determined.

[9]His starting point was that the respondent need only establish an SOSR reason for the dismissal which could justify the dismissal of an employee holding the job in question: it was not necessary to show that it actually did justify the dismissal. Indeed, at this first stage, the Tribunal must not consider justification, reasonableness or fairness, since such an approach risks conflating the two distinct stages of the test. 10.He continued that all the evidence demonstrates that the respondent dismissed under SOSR (breakdown in trust and confidence), and that was the sole reason for the dismissal. The respondent maintains that the reason(s) relied upon in dismissing the claimant was of a kind which could justify the dismissal of the claimant holding the position which she held. The Tribunal must ask whether the respondent had a fair reason which it genuinely believes to be substantial and “was it a reason which a reasonable employer could rely on to justify a dismissal as fair for the purposes of s.98(4)?”

[11]Applying common sense and experience, it is hard to comprehend how the unique facts of this case do not amount to a substantial reason, particularly given the respondent’s business and the claimant’s role within it. It cannot be said with any substance that no reasonable employer could have concluded such a substantial reason existed.

[12]There were numerous factors which were taken into account by the dismissal officer Ian Stringer - see his letter dated 25 April 2024, and latterly the appeal officer Lisa Ward - see her letter dated 22 July 2024. These witnesses were not challenged by the claimant on their genuine belief as to those matters being substantial.

[13]The respondent had satisfied Step I and answered questions 1.2 and 1.3 in the affirmative.

[14]Turning Issue 1.4 , Step 2., the Tribunal must now consider whether the decision to dismiss for SOSR was reasonable in all the circumstances (including the size and administrative resources of the employer’s undertaking). For this second stage of the statutory test, the burden of proof is neutral, so the onus is neither on the employer to prove it was fair, nor on the employee to prove that it was not. The Tribunal will consider justification, reasonableness and fairness but must not fall into error in equating sympathy with the claimant with unfairness in the decision or the process adopted. He added that the Tribunal are not permitted to substitute its own view but 20 of 40 must instead consider whether the view taken by the Respondent fell within a range of reasonable responses , citing Tayeh v. Barchester Healthcare Ltd

[2013] EWCA Civ 29

in this regard. 15.Mr Jones accepted that SOSR dismissals, such as the instant case, are always finely balanced. There are competing interests. On the one hand, is the claimant who has found herself in a situation not entirely of her own making. On the other hand, is a respondent with legitimate concerns as to the ongoing relationship and reputational implications arising out of truly extraordinary events. In the instant case, it is hard to conclude that no reasonable employer would/could have acted as the respondent did in dismissing the claimant with notice, having followed a thorough process.

[16]Mr Jones acknowledged the need for the Tribunal to be mindful of the caution expressed in Leach v Office of Communications

[2012] EWCA Civ 959

, where it was said that SOSR “is not a convenient label to stick on any situation, in which the employer feels let down by an employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate”. The facts of this case , however, clearly demonstrate a genuine SOSR situation - this is not a case where it could be fairly said that the respondent is trying to fit a ‘square peg into a round hole’.

[17]It is not necessary for the claimant to be at fault, or for the breakdown in trust and confidence to arise from misconduct on the claimant’s – he cited A v B

2010 ICR 849

. Further, he referred to Ezsias v North Glamorgan NHS Trust

[2011] IRLR 550

where the EAT held that an ET was entitled to find the fact of the breakdown was the reason for dismissal and the claimant’s responsibility for it was incidental. 18.Mr Jones submitted that the respondent was reasonable to consider that the claimant would be unable to move beyond the events which gave rise to her arrest/ and suspension and the ultimate incarceration of her wife. There was no confidence that the claimant could return to PTS without further incident; on any view, the level of animosity was profound and ongoing. The claimant’s outward expression(s) during the meetings, and eventually her post-dismissal but pre-appeal Facebook post solidified that view . He referred to National Heart and Chest Hospitals Board of Governors v Nambiar

[1981] IRLR 196

as authority for the proposition that the respondent could rely upon fresh information which comes to light during the appeal process to confirm the dismissal for the original reason.

[19]Referring back to Leach the question of assessment by the Employment Tribunal includes an examination of all the relevant circumstances, including the background as to how the parties found themselves in the position they did. It cannot be suggested that the claimant did not form part of the history/context of what ultimately led to the assault, hence her original arrest (which required reasonable suspicion) and lengthy period on police bail.

[20]Turning to reputational damage, or the risk thereof, it was entirely reasonable for the respondent to foresee reputational damage long before the trial. He cited Lafferty v Nuffield Health [UKEATS 0006/19], para 22 of the judgment, where Choudury J, said : “that was not unreasonable given that it would be at the point of conviction, if that were to arise, that the damage to reputation would crystallise.” He went on to submit that any suggestion that the Respondent could/should have waited for 21 of 40 reputational damage to crystalise (i.e at/post trial) is akin to closing the stable door after the horse has bolted and fails to address the legitimate concerns or protect the respondent’s interests. He added that the respondent had to be judged on the information available to it at the time. That would involve, in terms of what may come out in the course of the criminal trial, an element of crystal ball gazing on the part of the respondent in relation to what reputational damage it may suffer.

[21]The claimant’s length of service , it was submitted, is immaterial. The case of Alexis v Westminster Drug Project

[2024] EAT 188

was cited, once trust and confidence has irretrievably broken down, the Respondent is not required to consider alternatives as dismissal is the only option. The EAT held that an employer can only be obliged to consider length of service if it is relevant to the decision to dismiss. The decision to dismiss in that case was based on an irretrievable breakdown in the employment relationship. As such, the claimant’s length of service was irrelevant.

[22]As per L v K

[2021] CSIH 35

, para 28, the fact that another employer may have chosen not to dismiss is not the correct approach. The Tribunal was invited to find that the claimant’s dismissal on notice was within the range of reasonable responses, even if it concludes that some employers would not have dismissed, and answer ‘Yes’ to question 1.4.

[23]Turning to Issue 1.5 the claimant has not highlighted any procedurally unfair elements of her dismissal. Further, the respondent balanced all relevant factors and adopted a fair process (adopting such an approach akin to conduct/capability dismissals despite no need to do so). In that sense, they did more than most employers would or were obliged to do.

[24]Turning to the Human Rights issues raised by the Tribunal, the respondent says that no ‘special test’ needs to be applied as the range of reasonable responses test is compatible with the ECHR. As Mummery LJ stated in X v Y

[2004] ICR 1634

(CA):- "Considerations of fairness, the reasonable response of a reasonable employer, equity and substantial merits ought, when taken together, be sufficiently flexible, without even minimal interpretative modification under [section 3, HRA 1 998], to enable the employment tribunal to give effect to Convention rights." 25.In Turner v East Midlands Trains Ltd

[2012] EWCA Civ 1470

, the Court of Appeal again considered whether the unfair dismissal "range of reasonable responses" test is compatible with the European Convention on Human Rights. It concluded, inter alia-(i) Elias LJ found it difficult to see how an objectively fair procedure adopted by a reasonable employer could be described as unfair, thus engaging Article 8. The employer must investigate the matter "with a full appreciation of the potentially adverse consequences to the employee". However, as demonstrated by A v B and Roldan, the range of reasonable responses test "allows for a heightened standard to be adopted where those consequences are particularly grave".

(ii) Elias LJ's views were reinforced by the fact that the European Court of Human Rights has recognised that some leeway should be given to a dismissing employer (Sanchez v Spain

[2012] 54 EHRR 24

). The court "adopts a light touch" when examining human rights in the context of the employment relationship, and the 22 of 40 interests of the employer are given significant weight. Elias LJ concluded that the range of reasonable responses test "provides a sufficiently robust, flexible and objective analysis of all aspects of the decision to dismiss", including procedural safeguards. Recourse to a proportionality test "simply obfuscates and potentially complicates the essentially simple concept of a fair procedure".

(iii) Sir Stephen Sedley agreed, adding that "there is no Article 8 watershed - that is to say, no sudden point at which a potential denial of the respect owed to private life raises the procedural stakes and turns a fairness inquiry into a proportionality inquiry". Given that the effect of dismissal on any employee's standing and selfesteem is likely to be considerable, tribunals can be expected to ensure that no dismissal is treated lightly or casually by the employer.

(iv) In summary, the Court of Appeal rejected the argument that the range of reasonable responses test should be replaced by one of proportionality. As Sir Stephen Sedley put it, "the task of the employment tribunal is to invigilate the employment relationship by requiring the dismissal process to conform to a standard of fairness calibrated, among other things, to the grounds and consequences of the threatened dismissal".

[26]The following additional points were made:-(i) the concerns were not of a private nature, but intrinsically linked with the claimant’s employment and relationship with her manager and Stacey Smith.

(ii) the patient transport service is an integral part of the healthcare system and therefore its employees can rightly be held to account for relevant matters occurring in their private life. The respondent is required to ensure that its staff behave in a way which is commensurate to their obligations to the public in terms of safeguarding the ill, vulnerable and those reliant upon its services.

(iii) the information/history relating to the claimant and her relationship with Stacey Smith, and arrest/bail was clearly capable of bringing the respondent into disrepute and would likely undermine public confidence in the patient transport service and the Respondent generally.

(iv) As per Q v Secretary of State for Justice UKEAT/0 1 20/1 9 the justification for infringing the claimant’s rights was not that the information was likely to become public knowledge (although it was acknowledged that if it did it would damage the reputation of the respondent) rather it was about the unique position of, in that case, the probation service and its relationship with other statutory agencies. The same can be said for respondents who work with other statutory agencies, including the police.

(v) Insofar as there was any interference with the claimant’s convention rights it was proportionate in the circumstances and did not render the dismissal unfair (that is to say, outside the range of range of reasonable responses). The claimant’s submissions. 23 of 40

[27]As Mr Mark Jones was told, the Tribunal did not expect the claimant to respond on legal issues, and he confined himself to addressing the facts, and why the dismissal was unfair , as he saw it.

[28]The claimant had been dismissed for the reasons set out in the dismissal letters of 22 and 25 April 2024. The claimant did not receive the later letter by email. The respondent had explained these two letters. That the first one was dated 22 April 2024, which coincided with the start of the trial of Stacey Smith shows how the dismissal was strategically motivated.

[29]The prior involvement of Ian Stringer had been denied in the Grounds of Resistance, but his involvement on the IRP panel had been revealed. He now accepts that he had that prior involvement. The recommendations of James Bateson, who did the investigation, were changed by this IRP panel. He challenged the assertion that involvement upon such panels was common practice, and said that this prior involvement was the very definition of bias. It was an unfair process, the IRP panel was judge , jury and executioner.

[30]The claimant and her wife had raised grievances about Michala Morton, but these had been ignored. By contrast, the second that the claimant made a post of social media , after her dismissal, it was pounced upon by the respondent straight away. The claimant had asked for mediation with Michala Morton, but this had never been arranged.

[31]In terms of any publicity about the attack on Michala Morton, it was she who had shared footage of it with her colleagues.

[32]The respondent was notified by the GMP of the claimant’s release from her bail conditions on 12 March 2024, but the claimant was not notified until 3 April 2024. The respondent did not make the claimant aware of this, when she could have returned to work earlier, if she had been so informed.

[33]Turning to the reasons for the dismissal, Ian Stringer saw the fact of the claimant’s arrest as serious. There was no other evidence against her. All the other reasons relied upon by the respondent follow the same route. In terms of any lack of trust and confidence, the claimant’s colleagues should not have been made aware of the details of what had happened, it was not the claimant who was responsible for this.

[34]The respondent did not have a valid reason to dismiss. Had it arranged a mediation with Michala Morton, it is highly likely that all this could have been avoided. The respondent had made no real efforts to redeploy the claimant.

[35]In terms of reputational damage, and the reference that Mr Alex Jones had made to the respondent needing a crystal ball to predict the potential damage that publicity surrounding the trial of Stacey Smith made cause, that crystal ball must be broken, because the claimant’s name did not, and still has not, come out in that trial. The Law – the statutory provisions.

[36]The relevant provisions of s.98 of the Employment Rights Act 1996 are as follows: 24 of 40 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. Discussion and findings. (i)The Law.

[37]The relevant caselaw has also been cited in the submissions of Mr Alex Jones, and will be considered further in the Tribunal’s discussion below.

[38]Under s 98(1)(b) a dismissal may be for a fair reason if the employer can show that it is 'for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held'. These reasons do not have to be of the same type as those stipulated in s 98(2) (R S Components Ltd v Irwin

[1974] 1 All ER 41

[1973] ICR 535

). Provided the reason is not whimsical or capricious (Harper v National Coal Board

[1980] IRLR 260

), it is capable of being substantial and, if, on the face of it, the reason could justify the dismissal then it will pass as a substantial reason (Kent County Council v Gilham

[1985] IRLR 18

, CA)

[39]The Employment Judge would sound a note of caution here, in that the caselaw may be seen as coming dangerously close to enabling an employer to justify a dismissal a dismissal as potentially fair simply on the grounds that it believed that it would be. That is not the case, and this would be an over – simplification..

[40]There has been some considerable debate as to the extent to which an employer is obliged to follow a fair procedure, and in particular the ACAS Code of Practice, in carrying out SOSR dismissals. This debate, whilst concluding in favour of the proposition that the Code does apply, is somewhat academic in the context of this case, as the respondent did carry out the type of process (investigation, dismissal hearing, right of appeal and then appeal hearing) as it would have done had the reason for dismissal been , for example, conduct. That said, once the respondent had followed a particular procedure in the handling of this dismissal, the Tribunal is entitled to consider whether, at all stages, it followed (applying the band of reasonable responses test to the procedure as well as the substance) a fair procedure.

[41]The next issue to be addressed therefore is whether the dismissal, if potentially fair, was actually fair in all the circumstances. The caselaw sets out the various factors that need to be considered in assessing fairness. Some can be disposed of at an early stage. In carrying out this exercise, however, the Tribunal reminds itself that it is not standing in the shoes of the employer , and deciding what it would have done in the same circumstances, it is reviewing the actions and decisions of the respondent to determine whether they fell within the band of reasonable responses open to the employer , as it is required to do by the established caselaw such as Foley v Post Office and Midland Bank v Madden

[2000] ICR 1283

. 25 of 40 Discussion and Findings. (ii) The reason for dismissal and the test of fairness.

[42]The first question to be addressed is whether the respondent, upon whom the burden rests, has established a potentially fair reason for dismissal. The Tribunal is quite satisfied that it has, namely SOSR. There is no doubt that this was the reason that the respondent had for dismissing the claimant , and it has not really been challenged.

[43]What that reason , properly articulated, actually was does require some analysis. The reason has not actually been identified in the List of Issues, other than as “SOSR”.

[44]It has been put by the respondent as “breakdown in trust and confidence” (para.3.1.1 of the respondent’s Closing Submissions). That, however, may be an oversimplification. In para. 11(ii) of the respondent’s Opening Note it is said to be multifactoral, with the respondent simply referring to the dismissal and appeal outcome letters.

[45]In the Grounds of Resistance the reason/s is/are put (at para.28) as : “….. that there was a breakdown of trust and confidence in the Claimant, and that the breakdown was irretrievable. Further, it was reasonable for the Respondent to conclude that the Claimant’s continued employment ( in any capacity) was likely to undermine confidence in the service.” The Court of Appeal, however, has warned against over – recourse to the implied term of trust and confidence in Leach (cited above) where Mummery L J said , at para. 53: “The mutual duty of trust and confidence, as developed in the case law of recent years, is an obligation at the heart of the employment relationship. I would not wish to say anything to diminish its significance. It should, however, be said that it is not a convenient label to stick on any situation, in which the employer feels let down by an employee or which the employer can use as a valid reason for dismissal whenever a conduct reason is not available or appropriate. The circumstances of dismissal differ from case to case. In order to decide the reason for dismissal and whether it is substantial and sufficient to justify dismissal the ET has to examine all the relevant circumstances.”

[46]The Tribunal considers that this formulation of the reason is an over simplification. The factual reasons for the dismissal, it seems to the Tribunal, were twofold : firstly, and primarily, that the claimant was married to a fellow employee who had attempted to murder another fellow employee. Secondly, that the claimant had been arrested , and was subject to bail conditions for 4 months, before being discharged with no further action. As noted , this second factor played a major part, the Tribunal has found, in the decision of Ian Stringer, and this remained the case on appeal. The question then is do these factual reasons amount to SOSR, and if so, on what basis? 26 of 40

[47]It is hard not to be struck by the repeated references in Ian Stringer’s dismissal letters (both versions) to the claimant’s arrest. He returns to it often, and says that it was that which largely led to her dismissal.

[48]The Tribunal has no doubt that the reasons , so formulated , for the claimant’s dismissal were those , and that the respondent did dismiss the claimant for those reasons, which it believed amounted to SOSR.

[49]Having found that was the reason, the Tribunal must now consider whether, in all the circumstances, it was fair to dismiss the claimant for this reason.

[50]A number of points arise. The first and obvious one is that the arrest was an action in which the claimant was wholly passive, and for which she was in no way responsible. Whilst there will be circumstances in which an employee is arrested where they can be said to have done something to bring such an action upon themselves, that was clearly not the case here. The claimant was arrested because Michala Morton had made allegations against the claimant, having been seriously attacked by her wife. The Police did not find any basis for continuing their investigation, and the claimant could not reasonably have been considered by the respondent to have done anything to lead to her own arrest – not that this was even investigated. The very fact of the arrest, however, appears to have sealed her fate in the eyes of Ian Stringer.

[51]It is appreciated , of course, that this was not, on the respondent’s case, a conduct dismissal, and fair dismissals for some other substantial reason can take place without any fault on the part of the dismissed employee. Fault, however, became relevant, when the respondent chose to rely upon it. The previous warning to which the claimant was subject was , it is clear, taken into account, and Ian Stringer expressly said that such conduct on the part of the claimant was relevant even in an SOSR dismissal. So be it, but the Tribunal considers that it was outwith the band of reasonable responses for the respondent to take fault into account for one purpose, but to ignore the absence of fault for others.

[52]The second point is that whilst that (i.e the reasoning for the dismissal) is the position ultimately taken by the respondent, and is how matters are put in the second, sent, dismissal letter dated 25 April 2024, that is not how Ian Stringer was thinking on 22 April 2024, as revealed by his unsent letter of that date. The revealing words are (pages 90C of the bundle) : The closeness of your relationship with your wife, who stands trial for the serious and violent assault on an NWAS manager, cannot be ignored and it is difficult to assure ourselves that you had no notion of your wife’s intentions.

[53]The Tribunal finds these are significant words, and the fact that they do not appear in the final version of the dismissal letter is telling . The respondent , probably after HR advice and nuancing of the wording of this letter , perhaps realised that it could not be seen to base its decision upon untested suspicions of awareness of, or involvement in, the criminal actions of the claimant’s wife, which were never even put to her.

[54]Another aspect of the respondent’s case that the Tribunal has struggled with is the frequent reference to “reputational damage”. Ian Stringer and Lisa Ward both consider 27 of 40 this to be a major part of their decisions that the claimant had to be dismissed for some other substantial reason.

[55]Whilst deeply conscious of the prohibition upon the Tribunal upon substituting its judgment for that of the respondent, and to assess the respondent’s decision to dismiss by the yardstick of the range of reasonable responses, the Tribunal cannot see how this factor could reasonably be taken into account by a reasonable employer in these circumstances.

[56]The first, and most glaringly obvious, one would think, point is that any reputational damage that the respondent was likely to sustain from any publicity attending the trial of Stacey Smith for attempting to murder Michala Morton would derive from those very facts, i.e the actions of Stacey Smith, as an employee (by then an ex-employee) of the respondent in attacking a co-worker.

[57]Pausing there, the potential for reputational damage even from those facts can be over estimated. Stacey Smith did not assault a member of the public in the course of her work, she attacked a co – worker, at her own home, and out of working hours. Other than the fact they were both employed by the same employer, there was no other connection with their work. True , the roots of Stacey Smith’s anger towards Ms Morton were work related, and involved the latter’s treatment of the couple as a married couple, but that is as far as it went. There was no evidence that Ms Morton, or anyone else, considered that the respondent as her employer was responsible for Stacey Smith’s violent actions.

[58]Obviously any employer who employs persons capable of violently assaulting work colleagues can be rightly concerned at how they will be perceived by the public, especially when the employer is a public facing body providing healthcare. There was, however, no suggestion that the respondent was in any way responsible for Stacey Smith’s act of violence, or had any prior inkling that she would behave in this way. A moment’s thought, therefore, would not lead any right thinking person to think any less of the respondent as an employer , or provider of healthcare services, simply because one of its employees had attacked another. The workplace may well be the second most likely context for acts of violence after the home.

[59]In any event, even if this is wrong, and the respondent was reasonable in considering the effects upon its reputation of any publicity surrounding these events, the point remains that the root and overwhelming cause of the risk of any reputational damage was Stacey Smith’s actions , not the claimant’s. The claimant’s only involvement was to be married to Stacey Smith. How would that additional fact, if made public, add anything to any reputational damage that the respondent was going to sustain in any event because Stacey Smith had attacked Michala Morton?

[60]Further, if the respondent was really concerned that the linkage of the claimant to the attack upon Ms Morton by her wife may cause reputational damage, it did nothing to publicise her dismissal (or denies that it did – it does not even admit that it told Ms Morton of the dismissal before it told the claimant). The essence of reputational damage is publicity, yet the claimant’s dismissal was given none. How was that going to reduce the risk of reputational damage ? 28 of 40

[61]The Tribunal has considered the case of Lafferty cited in Mr Alex Jones’ submissions, but the obvious point of distinction is that in that case it was the risk of reputational damage arising from the potential conviction of the employee, who was the claimant, whereas here, the claimant is an employee whose only connection was to be married to the defendant in the criminal proceedings, and who faced no charges herself. Indeed, an examination of the judgment in Lafferty is instructive. Apart from the fact that the claimant , a hospital porter who transported anaesthetised patients to and from theatre, was the person actually charged, and facing serious criminal proceedings of assault with intent to rape, the respondent’s concerns in that case were that upon conviction (the Tribunal’s emphasis) the organisation, a registered charity, would suffer reputational damage.

[62]Of note too is this observation, at para. 35 of the judgment of Choudury J, : “It would not be open to an employer, in our judgment, to dismiss an employee for reputational reasons just because an employee faces a criminal charge. There would need to be some relationship between the matters alleged and the potential for damage to reputation. Thus, if the criminal charge related to a serious driving offence that the employee worked in a role that did not involve any driving duties then it would be unlikely that continuing to employee that employee would have any adverse effect on reputation or at any rate nothing so serious that it would provide a sufficient reason to dismiss. The position is clearly otherwise where the alleged offence is of a type that could be committed in the course of the employee's duties or which enables access to vulnerable persons. The risk to reputation, in particular arising out of the suggestion that the employer continued to place vulnerable persons at risk, is more obvious. However, even if [sic – sc. “in”?] those circumstances, there cannot be an assumption of risk without some consideration of the matter. It seems to us that the Respondent in the present case did give the matter due consideration.”

[63]In this case, of course, the claimant was not even charged, it was her wife who was. Further, the attack was not committed in the workplace, the common employment of attacker and victim was simply the context in which the attack occurred. What is clear from this passage, however, is that the employer must give some due consideration to the risk to reputation , it cannot simply be assumed. The Tribunal considers that the respondent did not give the risk due consideration in this case, it acted on assumption, or, more accurately , speculation.

[64]The Tribunal has had considerable difficulty in following the logic of the respondent’s position. It is summarised by the view of Ian Stringer that there would be an ongoing association with this incident to the extent that the respondent, its staff and the public could not have trust and confidence in the claimant in her substantive role or an alternative role.

[65]The obvious question is why ? So the respondent, its staff, and possibly, but rather remotely, members of the public knew, or may know, that the claimant was married to the woman who violently assaulted Ms Morton. Put bluntly - “So what?”, the Tribunal is inclined , with respect, to ask. Absent any finding of, or even investigation into, the reasons for the claimant’s arrest and release on bail, what more would anyone , particularly members of the public who would not even be aware of the fact of her arrest (which was not publicised) know about the claimant’s connection with the assault? The dismissal, of course, was before the criminal trial. 29 of 40

[66]In terms of the trust and confidence of members of the public, even if any of them actually made the connection between the claimant , with a very common name, and no photographic or other identification of her by name , pre-, or even post-, the assault trial of her wife, how would such persons then have been concerned that the claimant was part of the team that came to drive them to or from an NHS facility. The claimant’s wife had not attacked a patient, she had attacked a colleague. Whilst the respondent would be entitled to take into account that not all members of the public, or even its own staff, would be right – thinking, there has to have been some rational basis for fearing this reaction by either of those groups to the claimant remaining in the employment of the respondent, and the Tribunal cannot see, or, more to the point, cannot see how the respondent could reasonably foresee, such a reaction.

[67]It is appreciated that the respondent could not know (but could have taken steps to find out) what evidence may come out at the trial. That the claimant was the wife of the defendant, and was, at the time of the incident a fellow employee, would be likely to become public knowledge. To that extent any reputational damage would be suffered in any event , as of course it would be , to a much, much, greater extent by the very fact of the employment of the perpetrator and victim being employed by the respondent. It is hard to see how the additional fact of the claimant also being employed by the same employer added anything to the reputational damage that would already be sustained , and even harder to see how dismissing her after the event would be likely to diminish it.

[68]Ian Stringer drew no distinction between the risk of reputational damage amongst various groups (see e.g. page 102, his response to point 2c. of the claimant’s grounds of appeal) where he lumps together staff members, managers, patients and the general public. A moment’s thought, however, reveals that this risk is very different amongst these groups. In terms of the respondent’s staff and managers, they, it is accepted, would be likely to have access to information actually linking the claimant to the assault by her wife, but would equally be likely to know that no criminal action was pursued against her. Even those (few, it would be reasonable to suppose) who knew of her arrest and bail conditions would also know that she was not charged. Thus whilst they would be likely to make some connection, they would also be likely to know that there was no basis for implicating the claimant in the assault by her wife.

[69]Patients, and the general public , an even more remote group, would , the Tribunal considers be highly unlikely even to make the connection , and, even if they did , they would be highly unlikely to consider that they were at any risk from the claimant. The most that could reasonably be predicted in the unlikely circumstance that any patient encountering the claimant in the course of her work made the connection with the assault committed by her wife , is speculation on their part as to what she knew about it. The assault, of course, was not upon a patient.

[70]The respondent, particularly Ian Stringer who repeats this several times, has also focussed very heavily upon the claimant’s arrest and bail conditions, but neither of these received any publicity. True it is that the claimant’s colleagues would be likely to know of her arrest, and probably her bail conditions, but they would then be equally likely to know that no charges were brought against the claimant , and she was released from bail. Reputational damage is only of real relevance once the matter is in the public , rather than the work, domain. 30 of 40

[71]No reasonable employer would have considered that these facts would give rise to any real risk of reputational damage. Firstly, these facts , in so far as they related to the claimant , were not public, and would be most unlikely to become public. As observed above, the claimant had done nothing to get herself arrested. There was no evidence (certainly none before Ian Stringer or Lisa Ward) that any of her colleagues believed that the claimant was involved in the attack upon Ms Morton, or that she condoned it. More importantly, there was no investigation into these aspects of the case.

[72]What comes out strongly from all the evidence in this case is this. At the time of the claimant’s initial suspension and the preparation of the investigation report in late 2023 and into 2024, she was subject to arrest, and bail conditions which meant she could not come to work, or have any contact with work. At that time it was unclear whether she too would be charged, and for how long she was likely to be subject to these bail conditions.

[73]The investigation report prepared at that time clearly expresses concerns about the claimant remaining on bail indefinitely with the attendant effect upon her ability to attend work. That was the thrust of the respondent’s concerns at that time, and , as James Bull later said, this was the sole basis for the action that was proposed against her at that time.

[74]All that, however, changed when the claimant was released from her bail conditions, and told that no further action would be taken against her. The respondent knew that even before she did. It also knew, certainly by 19 April 2024, and probably before then, the evidence shows, that the trial of Stacey Smith was imminent, and was listed for 22 April 2024.

[75]The Tribunal accepts that this presented a problem for the respondent. The original and main plank of the basis for taking any action to terminate the claimant’s employment had now been removed. The respondent, however, chose to continue to construct an edifice upon which to proceed to dismiss her.

[76]That is not to say that the claimant should simply have been allowed to return to work. Her continued suspension , pending the trial of Stacey Smith, for instance would have been perfectly justifiable. The respondent, however, went further.

[77]It is hard to avoid the conclusion that the respondent , faced with this admittedly difficult situation, having lost the potentially safe ground for the claimant’s dismissal once she was released from her bail and was no longer under Police investigation, and wanting to deal with her before the commencement of the trial of Stacey Smith on 22 April 2024, pressed on with a process which was intended to ensure her dismissal before she may have given evidence in her wife’s trial.

[78]That is a conclusion to which the Tribunal was reluctant to come, but is the only inference that can be drawn from a number of facts. The first is that Ian Stringer told the claimant at the end of the meeting on 19 April 2024 that he would need time to consider “a lot of information”, saying this twice (page 85 of the bundle) , and would need to take the time to consider it all fully. Becky Hunter, if anything, suggested that more than 7 days may be required, as the meeting was not being held under the disciplinary policy, saying it would be provided within a “reasonable” time. 31 of 40

[79]The decision however, was made no later than 22 April 2024. We know that from the letter of that date , which bears Ian Stringer’s signature. That this was the first day of the trial of the claimant’s wife is not, the Tribunal considers, a coincidence. That Ian Stringer , despite indicating to the claimant that he would need time to consider the “lot of information” provided to him, was able to produce this reasoned , and apparently complete document (it is nor marked “draft”, and is even signed) so quickly suggests either that the decision had already been made before the meeting on 19 April 2024, or that the decision was rushed in order to be available to be referred to in the trial of Stacey Smith, particularly should the claimant give evidence in it, or maybe both.

[80]That Michala Morton was able to give evidence in the trial that the claimant was an ex-employee, before the claimant was even informed of her dismissal reinforces this inference. The Tribunal does not accept that Ms Morton just made a lucky guess, it is far more likely that she had been told that the claimant had been dismissed before she was. The timing, therefore of the unsent letter of 22 April 2024 is highly significant, and the Tribunal is quite satisfied that the decision had been taken by the end of that day at the latest.

[81]The timing of this letter is not the only aspect of it which is significant. Whilst Ian Stringer sought to say that the initial and the second letter dated 25 April 2024 are similar, there are some significant, if nuanced, differences.

[82]Most significant is the inclusion in the former, but omission from the latter of this paragraph: “The closeness of your relationship with your wife, who stands trial for the serious and violent assault on an NWAS manager, cannot be ignored and it is difficult to assure ourselves that you had no notion of your wife’s intentions.”

[83]That is, the Tribunal finds, tantamount to the respondent saying that it did not believe that the claimant was not in fact implicated in the attack upon Ms Morton by her wife, of which there was no evidence, and in relation to which the Police had determined there was no case to answer. This is echoed in para. 22 of his witness statement where he says: “I could not be sufficiently sure whether or not the Claimant had any notion of her wife’s intentions …”

[84]If not an actual finding, the Tribunal considers that this is very revealing of Ian Stringer’s mindset, and possibly that of others too – in effect “no smoke without fire”. That also would explain the fixation with the fact of the claimant’s arrest and bail conditions. Whilst those two factors were current the respondent could rely upon them as justifying at least a level of suspicion of involvement in the attack, with the possibility ,at least , of charges to follow. Once they had gone, however, without any grounds upon which to allege that the claimant was in fact involved in , or culpable in any way for the attack, the respondent could not, or could not be seen to, rely upon untested allegations which were never even put to the claimant, and which would be conduct, not SOSR, issues.

[85]The Tribunal can accept that Ian Stringer’s view (in answer to point 2d. of the grounds of appeal, page 102 of the bundle) that the relationship of trust and 32 of 40 confidence between Ms Morton and the claimant had broken down was a reasonable one, and that some form of mediation, even if appropriate in the past, was not now going to repair it.

[86]That, however, is not in itself , in the Tribunal’s view, a good enough reason to dismiss the claimant, at least not unless and until other alternatives had been reasonably explored and rejected , or had been tried , but had proved unsuccessful. The appeal.

[87]Turning to the submission that the respondent was entitled to take into account events between the original dismissal and the appeal as entitling it to confirm on appeal the correctness of the decision to dismiss, based upon National Heart and Chest Hospitals Board of Governors v Nambiar

[1981] IRLR 196

the Tribunal notes these words from the judgment of Waterhouse J., in the judgment in that case: The date of the decision to dismiss and the principal reason for it are established before an internal appeal, but an Industrial Tribunal has to consider whether the employer can satisfy them that 'in the circumstances (having regard to equity and the substantial merits of the case) he acted reasonably in treating it as a sufficient reason for dismissing the employee*. In our judgment250 these are words of broad application and we suggest that our interpretation does not do violence to the language. When an internal appeal body decides or recommends that a dismissal shall stand, it has to consider whether the reason is sufficient to justify confirmation of the dismissal in the light of any new information about it as well as the information available to the employer when the original decision was made; and it would be artificial to exclude the new material from consideration by an Industrial Tribunal adjudicating upon a decision to dismiss that the employer has confirmed. If this were not the correct view, the remedy for an employer would also be artificial because he would have to set aside the original dismissal and make a fresh decision to dismiss on the basis of the augmented evidence; and in many cases an employee would be at a greater disadvantage in contesting the employer’s case under s.57(3) if he were unable to refer to information elicited in the internal appeal proceedings.

[88]The Tribunal accepts that principle, but its application to this case does not, the Tribunal considers , assist the respondent. The aspect of the appeal that concerns the Tribunal is the introduction into it of the claimant’s Facebook posting on 1 July 2024 (page 108 of the bundle). This came about because Angela Wetton , a Panel member, asked the claimant whether she had posted anything else on social media since the one which had led to previous disciplinary action. The claimant volunteered the information (page 121 of the bundle) that she had made a post (she did not say when) in which no threats had been made, and no names mentioned, but she had referred to this person wrecking her life.

[89]It is not totally clear, but the evidence suggests that a copy of this post was not actually before the appeal hearing. It would not, therefore be clear to the panel that it was made on 1 July 2024, after the claimant’s dismissal. It is, the Tribunal considers, of note that this was followed up by Marshall Kumawu, the HR support for the Panel. There is no indication that this had been provided to the claimant ahead of the appeal hearing, it does not feature in Ian Stringer’s management statement of case, and this appears to have been something referred to by the claimant in the hearing. No one, 33 of 40 however, appears to have requested a copy for the panel to consider in its deliberations. Marshall Kumawa (who did not give evidence) , however, must have had access to this posting, as he was able to ask the claimant about the reference in it to “Chucky”.

[90]That was, the Tribunal considers, something of an omission. It clearly, in the Tribunal’s view, influenced the view of Lisa Ward, and her colleague, as she referred to it in her evidence, as supporting her conclusion that the claimant could not repair the loss of trust and confidence that had occurred between her and Michala Morton. The impression that the Tribunal has is that whilst the post was discussed in the hearing, it was not actually produced in the hearing. There are two possibilities, therefore. Either the panel, or HR, had a copy before the hearing, but did not provide one to, or put a copy to, the claimant during the hearing. The second is that after the hearing, but before the outcome, the panel was provided with a copy, but the claimant was not told that it had a copy. Either is unsatisfactory.

[91]Quite apart from any procedural unfairness of not actually producing a copy of this post in the appeal hearing, Lisa Ward and her colleague ignored, or failed to give sufficient weight to , the obvious point that this post was made after , and indeed, because of, the claimant’s dismissal. Lisa Ward clearly was so aware by the time of her outcome letter. The claimant did indeed blame Ms Morton for her dismissal, understandably so , as the respondent had relied heavily upon the fact of the claimant’s arrest and subsequent bail conditions, which had come about solely because Ms Morton had made allegations about her to the Police. These had got her arrested, and then, in her mind, dismissed. Lisa Ward, in fact, used this post to support an argument that there was a risk of association, and hence of reputational damage. The Tribunal’s view is that it does, and could not reasonably be considered to do, no such thing, especially given the use of a nickname, and that this (not challenged by the respondent) was a private posting.

[92]An employee’s reaction post – dismissal to what they may legitimately have regarded as the unfairness of that dismissal , initiated by a colleague’s conduct, is not a reasonable matter to take into account in assessing, as the appeal panel was meant to, the fairness of that dismissal. It may be relevant as to how to manage the situation if the appeal were to be allowed, but it cannot be relevant as to whether the decision to dismiss was fair in the first place. Thus, whilst accepting the principle that post termination, pre-appeal , information can be taken into account in the overall assessment of whether the original dismissal was fair, to do so in these circumstances the Tribunal finds was not reasonable. The respondent was seeking to rely upon the claimant’s social media reaction to her unfair dismissal as confirming that it had been right in its original decision. That is not comparing two similar situations. That this was an exercise conducted without an open further investigation into this posting compounds, and does not diminish, any unfairness.

[93]It is appreciated that a dismissal for SOSR can be without any fault on the part of the employee. Further, it is also clear that SOSR dismissals are not confined to the same four types of other potentially fair reasons set out in s.98 of the ERA. That said, of those, one, redundancy, has no requirement for any conduct or performance on the part of the employee, one, conduct clearly does, another, capability does relate to some performance in terms of either the manner of carrying out the work, or their 34 of 40 attendance at work, and the fourth , (contravention of a statutory restriction) is a wholly discreet and rare reason.

[94]Whilst, therefore there is not requirement in SOSR dismissals for any fault of the part of the employee, the Tribunal considers that absence of fault is nonetheless a factor that it can and should take into account in assessing the fairness of the dismissal in these circumstances on the grounds of SOSR. As previously observed, the respondent has not been consistent on this issue, taking some conduct on the part of the claimant (e.g. that which led to her live warning, which, of course , she did not actually breach) but saying t, on the other hand, that her conduct was the issue in her dismissal.

[95]As observed, the Tribunal has also been struck by the undercurrent that it has detected in the respondent’s evidence of some blame being attributed to the claimant, based solely upon the fact of her arrest and release on conditional bail. That undercurrent even seeped into Mr Jones’ written closing submissions, where in para. 3.2.3 he refers to the claimant finding “herself in a situation not entirely of her own making”. With respect , there is no “not entirely” about it, provided that one keeps to the position at the time of the dismissal, and not at the time of the appeal. How, the Tribunal asks, was the claimant’s position of being married to a fellow employee who attempts to murder their mutual superior colleague in any way of the claimant’s making? How was her arrest in any way “of her own making”? The obvious answer is that it was not, nor could it reasonably be regarded as being.

[96]The Tribunal must also take issue with another contention in Mr Jones’ submissions (para. 3.2.7) where he says: It cannot be suggested that the claimant did not form part of the history/context of what ultimately led to the assault, hence her original arrest (which required reasonable suspicion) and lengthy period on police bail. With respect, the claimant forming part of the “history or context” of what led ultimately to the assault can hardly a ground for dismissing her. The second part of this sentence, however, again contains an insinuation of conduct – i.e because the Police must have had reasonable grounds for suspicion for the arrest, the claimant must have done something to justify that suspicion. Again, the respondent is flirting with conduct issues. In fact , the sole reason for the claimant’s arrest is what Michala Morton told the Police. The letter suspending the claimant made reference to her arrest being for allegations of harassment and threats to kill Michala Morton, although quite how the respondent knew that is open to question. The respondent chose not to pursue those issues any further. After the claimant was de-arrested it was perfectly open to the respondent to investigate what Michala Morton had told the Police as a potential conduct issue , relating to the claimant’s own conduct, which may then have justified the instigation of disciplinary proceedings against the claimant, but it chose not to.

[97]The claimant , the Tribunal finds, then found herself in the worst of both worlds. She was being taken through the SOSR process, but not a conduct process, in which the uninvestigated allegations made by Michala Morton were not pursued, but were taken into account as somehow being an indication that the claimant was herself guilty of some misconduct towards Ms Morton. As the claimant put it in her ET1, this was “guilt by association”.

[98]Finally, the Tribunal will address another aspect, the conclusion that the claimant could not be retained in the respondent’s employment in any role. That was Ian 35 of 40 Stringer’s, and on appeal, Lisa Ward’s view. That made discussions about redeployment irrelevant. Ian Stringer said as much, whilst at one time appearing to be considering the options for it, he then went on (page 85 of the bundle) to say that he was not trying to have a redeployment conversation.

[99]Whilst perhaps an issue for remedy, the respondent is a large employer covering a wide area of the North West. There were, the claimant would accept, or would have to accept , going to be difficulties in her continuing to work from the same base as she was employed , and she would have to consider re-locating. That , however, was never explored any further, because Ian Stringer then made it clear that he was going to dismiss regardless of the claimant could or could not have been redeployed in any other role, working from any other location.

[100]That remained the view of Lisa Ward on appeal, as she states in para. 24 of her witness statement, where she summarises her decision as follows: “Notwithstanding these considerations, I reached the conclusion that even if there was a non- public-facing role available that was suited to the Claimant’s skill set, the breakdown of trust and confidence in the Claimant was such that her employment could not continue. The reason for this was the serious nature of the allegations that the Claimant was arrested for, coupled with the relationship to the perpetrator of the known attack on MM, the breakdown of relationships between those individuals and the public nature of the trial that was due to commence and the likely impact this would have on the Trust’s reputation.”

[101]For the reasons previously given, the Tribunal cannot agree, and cannot find that such conclusions were open to the respondent to reach. The claimant’s dismissal was unfair. Human Rights issues,

[102]Turning to the human rights aspect, raised by the Tribunal, as it considered it was under a duty to do so, Mr Alex Jones’ submissions do allude to the leading authority, and the approach that the Tribunal should take. In X v Y

[2004] IRLR 625

the Court of Appeal had to consider the interrelationship between the Human Rights Act 1998 and ERA 1996. It considered the position to be that an employment tribunal when applying s 98(4) was required to give effect to Convention rights under the Human Rights Act 1998 s 3. Furthermore there was no legal justification for treating public sector and private sector employees any differently. This was for two principal reasons; the first was that s 3 of the Act applied directly to the employment tribunal itself. Secondly, there was no justification in principle as to why private sector employees should not also enjoy convention rights in an unfair dismissal context. Mummery LJ provided the following guidance to employment tribunals whenever HRA 1998 points were in issue: ''Whenever HRA points are raised in unfair dismissal cases, an employment tribunal should properly consider their relevance, dealing with them in a structured way, even if it is ultimately decided that they do not affect the outcome of the unfair dismissal claim. The following framework was suggested: 36 of 40(1) Do the circumstances of the dismissal fall within the ambit of one or more of the articles of the Convention? If they do not, the Convention right is not engaged and need not be considered.

(2) If they do, does the state have a positive obligation to secure enjoyment of the relevant Convention right between private persons? If it does not, the Convention right is unlikely to affect the outcome of an unfair dismissal claim against a private employer.

(3) If it does, is the interference with the employee's Convention right by dismissal justified? If it is, proceed to (5) below.

(4) If it is not, was there a permissible reason for the dismissal under the ERA 1996, which does not involve unjustified interference with a Convention right? If there was not, the dismissal will be unfair for the absence of a permissible reason to justify it.

(5) If there was, is the dismissal fair, tested by the provisions of ERA 1996 s 98, reading and giving effect to them under HRA 1998 s 3 so as to be compatible with the Convention right?''

[103]The Tribunal’s concern was whether , if the claimant’s dismissal was for a reason related to her marriage to Stacey Smith, Article 8 may be engaged, which provides: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

[104]As the caselaw cited by Mr Alex Jones shows, however, there is no need to apply a separate test based upon the Convention rights of the claimant. The test that the Tribunal applies for unfair dismissal is likely to be, and in this instance, is, sufficiently robust to afford the necessary protection under the Convention.

[105]Applying the tests for unfair dismissal , this claim succeeds. It does not succeed because the claimant’s Article 8 rights were breached by the decision to dismiss her. Other issues

[106]For completeness, the Tribunal does not find that the dismissal was unfair by reason of Ian Stringer’s previous involvement in the matter. His role on the IRP was , the Tribunal considers, not such as was likely to lead to any pre-judgment. Almost by definition whenever a disciplinary matter progresses to the next stage , some judgment will have been made that there is a case to answer, and the IPR role seems to the Tribunal to have been little more than a filtering one. Perfect separation is not always possible, even in large organisations. Similarly the Tribunal is quite satisfied that there was nothing in his alleged previous dealings with Michala Morton which should have disqualified him from hearing the claimant’s case. Equally, the Tribunal agrees that 37 of 40 length of service is an irrelevant consideration in SOSR dismissals, and the Tribunal has not taken that into account in its finding of unfair dismissal.

Remedy

[107]The claimant is entitled to a remedy. Whilst the Tribunal has determined liability, the respondent’s Opening Note did make submissions on remedy. At the start of the hearing it was agreed that the Tribunal would only determine liability. The respondent has pleaded that any compensation should be reduced on the grounds of Polkey , and/or for contribution. In this hearing Mr Alex Jones told the Tribunal that in relation to the latter, a reduction for conduct would only be sought in respect of the compensatory award (although the List of Issues also includes such a reduction from the basic award). Further, he told the Tribunal that the only conduct relied upon would be the claimant’s conduct post – dismissal, i.e her social media post on 1 July 2024.

[108]Whilst the Tribunal will not (as the respondent has indicated that it will make further oral submissions on remedy) make any final determination of remedy issues in this judgment, the parties may benefit from the Tribunal’s provisional views on these issues.

[109]On the Polkey issue, there are probably two issues. To be clear, the Tribunal sees no issue on the procedure which was actually followed. Procedural issues would only arise in the context of the respondent taking the claimant down a conduct route. The Tribunal will require some convincing that a fair conduct procedure would have made any difference. The error that the respondent made was not procedural, it was substantial. As the Tribunal has decided, dismissal in these circumstances was unfair, and conflated conduct with SOSR issues. As postulated, it may have been fairer for the respondent to have the courage of its suspicions, and taken the claimant down a conduct route, based upon whatever Michala Morton had told the Police which led to her arrest. The Tribunal, however, presently has no evidence upon which to base any assessment of what such a process would have led to, and therefore no basis upon which it could make any such reduction.

[110]The second Polkey issue that may be pursued relates to whether, and if so how and where, the claimant could have been redeployed within the respondent. Whilst this was addressed to some extent by Ian Stringer, as the judgment shows, he did not explore these issues in any great depth, as he took the view that the claimant had to be dismissed in any event. In relation to remedy, however, the Tribunal may be invited to conclude that, had the claimant not been dismissed, she could not have been redeployed into any other role, anywhere else within the respondent organisation, so could not have continued in employment , at least, not indefinitely.

[111]Against that, the claimant may argue that the respondent is a large employer (with just under 8,000 employees) covering the whole of the North West, and that she would have been willing, had these issues been fully explored , to re-locate, particularly after the imprisonment of her wife, and the breakdown of their relationship.

[112]It is likely, also, the Tribunal considers that the claimant would have continued to have the support of her trade union, which would have been able to assist her and the respondent to seek out suitable alternative roles. Further, the Tribunal would point out, to the extent that the respondent may have been seeking to limit redeployment to non 38 of 40 – patient facing roles, the Tribunal would consider that there would be no justification for such a limitation, certainly in any geographical location away from the Oldham area where these unfortunate events played out. The need, therefore for the claimant to acquire a new skill set would probably not arise, but even if it did, the Tribunal would wish to explore why she should not be given the chance to do so.

[113]In terms of any conduct reduction, as the respondent has elected to rely solely upon the claimant’s post – termination conduct, the Facebook posting of 1 July 2024, that is a very narrow and specific basis upon which to seek any reduction in the compensatory award. That conduct could potentially meet the threshold requirement for it to be culpable, blameworthy, foolish, or similar, but the Tribunal has to consider whether , firstly the extent to which it contributed to the dismissal, and secondly whether it would be just and equitable to make any reduction, and if so, in what proportion.

[114]The Tribunal’s provisional view is that no such reduction should be made. The first reason is that , at the time of making that post, the claimant was no longer an employee of the respondent, she had already been dismissed, and was reacting to that dismissal. Secondly, other than to make a sarcastic expression of faux gratitude towards Michala Morton, she did no more. She did not threaten her, condone the attack upon her, or do any more than express her irritation at her perceived role in securing the claimant’s dismissal. Thirdly, as found above, this conduct was only revealed, and had only occurred, after the initial dismissal. It was then introduced in the appeal, possibly unfairly. It can only, therefore, have contributed, unfairly, to the rejection of the claimant’s appeal, and not to the original dismissal. Whilst the caselaw makes it clear that the original decision to dismiss and the subsequent appeal against it are indivisible, the Tribunal would have to consider whether it would really be just and equitable to reduce the claimant’s compensatory award at all on the basis of her understandable, if slightly ill – considered , reaction to what she saw, and the Tribunal has found, was her unfair dismissal.

[115]Turning to compensation, and to assist the parties ahead of the remedy hearing (if one should be necessary), the Tribunal will set out the matters which it will be considering in determining remedy.

[116]The claimant has succeeded in her claim of unfair dismissal, which gives her an entitlement to a basic award and a compensatory award. The former is calculated in the same way as a statutory redundancy payment.

[117]Based upon the claimant’s schedule of loss (page 35 of the bundle) the claimant’s entitlement to a basic award appears to be as follows : Length of service : 26 years Age at date of dismissal : 56 Week’s pay (gross) : £510.42 Basic award therefore : £14,036.55 39 of 40 In terms of the compensatory award, this is subject to the cap (the dismissal being after 6 April 2024) in s.124 of the ERA1996 of the lower of £115,115 or 52 weeks’ pay (note this a figure, not a temporal limit) . The claimant’s gross monthly pay was £2211.82, which equates to a week’s pay of £510.42. The statutory cap therefore is £26,541.84, on the Tribunal’s calculations.

[118]The claimant obtained alternative employment fairly quickly, but claims partial loss of earnings. As at the date of her schedule of loss (which is undated) the claimant was claiming a partial loss of from the end of her notice period at the rate of £1126.66 per month. These figures are unclear, however, and the schedule of loss incudes elements for universal credit, and pension benefits, which may affect issues such as recoupment, and the calculation of net loss . The claimant needs to update this schedule, and, perhaps with the benefit of some advice , calculate what her losses are.

[119]The parties are to seek to agree remedy, or to narrow the issues on remedy, and then ask the Tribunal to list a remedy hearing in accordance with the orders above. Approved by: