Case of the week

Husband and wife split in more ways than one. Dismissal can be fair when it becomes impossible to continue working together.

When the marriage breaks down so does the working relationship.

What happens when a husband and wife run a company, their marriage is on the rocks and they decide to split? The split is acrimonious and one party maintains that the working relationship can no longer continue and should go the same way as the marriage?

If the husband is the director of the company and his wife is employed as a bookkeeper, employment law must be taken into consideration. This is not an uncommon scenario, so what reason can the ‘employer’ put forward to make the dismissal of the ‘employee’ fair?

The Employment Rights Act 1996 provides that for a dismissal to be fair or unfair it falls into one of a number of categories. We are familiar with them - conduct, redundancy, capability and qualifications.¹ But there is also a ‘catch all’ category to cover situations when a dismissal may be fair but does not fall under one of the common reasons.

That category is known as a dismissal for some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held, or SOSR as employment lawyers commonly refer to it, and relationship breakdowns often fall into this category.

In Ms N Malcolm v Aquarius Thermal Systems Limited Ms Malcolm