Could you dismiss an employee for being too attractive?
02 December 2013
A recent case in the US state of Iowa decided that it was legal for a dentist to sack his assistant (under pressure from his wife) because he found his assistant “irresistibly attractive”. Notwithstanding the pattern of sexual harassment displayed by the dentist towards his assistant (which would almost certainly give rise to a sexual discrimination or harassment claim) this case raises an interesting question of whether the principle of dismissing an employee for being irresistibly attractive would be “fair” if the dentist was based in England or Wales.
Under section 98 of the Employment Rights Act 1996, there are five “potentially fair” reasons for dismissing an employee:
- Capability or qualifications;
- Breach of a statutory duty or restriction; and
- Some other substantial reason (SOSR).
Reasons 3 and 4 are not relevant on the facts of this case and there was no question as to the assistant’s capability, nor was there any suggestion of her acting inappropriately (and therefore giving rise to a dismissal for conduct). The only possibly “potentially fair” reason is therefore for “some other substantial reason” which was designed as a “catch-all” provision for any potentially fair dismissals which did not fall under categories 1-4.
It is extremely doubtful that finding oneself “irresistibly attracted” to an employee would be deemed to be a fair reason for dismissing them. However, although the circumstances leading to the employee’s dismissal in this case arose out of the dentist’s attraction to the employee, the actual reason for the dismissal was the pressure being placed upon the dentist by his wife to dismiss the employee (once his wife became aware of his attraction to the employee). Therefore, the question is whether his attraction to the employee coupled with the pressure from his wife could lead to a total breakdown in the employer/employee relationship leading to a fair dismissal? In the UK, some scenarios which fall under the SOSR exclusion are (1) personality clashes and (2) pressure from third parties.
(1) Personality clashes: The wife was also an employee of the dental practice in the Iowa case and we therefore must ask whether a personality clash between two employees (i.e. the employer’s wife and his assistant) was a fair reason for dismissing one of those employees. In the UK, the answer is likely to be no. This is because in circumstances where two employees have a personality clash, dismissing one of the employees whilst taking no action against the other (in a situation where there is no fault on the part of the employee being dismissed) would be unfair.
(2) Pressure from third parties: There are a number of cases in which a dismissal following pressure from a large supplier or customer has been deemed to be “fair” (subject to certain criteria being satisfied). However, it is unlikely that this legal principle could be applied in the case of pressure from an employer’s wife as, in this case, there would be no damage to the employer’s business by failing to dismiss the employee (notwithstanding the possible damage to the employer’s marriage!).
It is apparent that (in the UK) trying to argue that the dentist had dismissed the employee fairly for “some other substantial reason” would be an uphill struggle. Such an argument is unlikely to be looked upon kindly by an Employment Tribunal in England or Wales. Our conclusion (besides advising you to always seek legal advice before dismissing an employee!) is that this appears to be a peculiar interpretation of law in Iowa and a similar set of circumstances, if presented to an Employment Tribunal in England or Wales is likely to produce a very different outcome. To fairly dismiss an employee, it is better to stick to one of the more conventional reasons.
For further information or advice on dismissing an employee, please contact our Employment Team.
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