A look at how ‘Some Other Substantial Reason’ (SOSR) can be a potentially fair reason for dismissal.
Most employers will be well versed in executing redundancy, capability and conduct dismissals in line with their standard policies and procedures. However, attempting to fairly dismiss an employee who has no performance issues; has not committed any misconduct; and whose work is not ceasing or diminishing can often be fraught with uncertainty and difficulty when relying on the SOSR “catch all” potentially fair reason for dismissal.
In order to rely on SOSR as a potentially fair reason for dismissal, an employer must show that the dismissal of the employee can be justified by a reason which is substantial (as opposed to trivial or frivolous) in that employee’s current role. The SOSR must also be the sole or principal reason for the dismissal and employers must demonstrate that the dismissal was reasonable taking into account all the circumstances. It is therefore important to only rely on SOSR as a potentially fair reason for dismissal if the real or principal reason does not fall within the remit of one of the other four potentially fair reasons (namely, conduct, capability, redundancy and breach of statutory duty or restriction) albeit there may be some overlap.
Common Examples of SOSR Dismissals
if an employee has been recruited to cover a period of leave for a fixed term and their term is coming to an end because the employee they are covering is returning to work, this could amount to a fair SOSR dismissal. A common mistake employers make in these circumstances is to just rely on the contractual provisions – the expiry or non-renewal of the contract as purely the reason for dismissal. If the employee has more than two years’ employment, they are entitled to not be unfairly dismissed and the employer still therefore needs a fair reason for dismissal which could be SOSR or redundancy depending on the circumstances. The reason for dismissal should therefore be communicated to the employee.
There may be occasions where a business wishes to restructure and they do not consider all employees are a good fit within the proposed new structure. However, they cannot rely on redundancy as a potentially fair reason for dismissal as the number of employees or work is not ceasing or diminishing. In these circumstances, the employer can rely on SOSR as a potentially fair reason, however, the employer should take care to ensure that they are not falling foul of any collective consultation legislation and they should be satisfied that there are no reasonable alternatives to dismissal.
There have been a number of cases where personality clashes and damaged relationships between colleagues or at Board level have resulted in a fair SOSR dismissal but employers must proceed with caution in these situations. The relationship or personality issues must be substantially affecting the employer’s business and be more than trivial disagreements. In these circumstances, dismissal should be a last resort once all other alternative steps to resolve the issues (which might include redeployment or mediation) have been considered. It is also likely that a SOSR dismissal because of a personality clash or relationship issues is likely to be very contentious especially if only one employee is dismissed and the employer is seen as siding with the other.
Another SOSR reason could be where the employee has no performance or conduct issues but a key customer or client of the employer makes it clear that they do not wish to work with that employee, and it is not feasible to allocate alternative clients or work to that employee. This could be a fair SOSR dismissal if there is a real threat to the employer’s business, for example, the client taking an important and valuable project elsewhere, and the third party’s motive for removing the employer is not discriminatory.
Explaining the SOSR
In view of their subjective and wide nature, SOSR dismissals can be difficult to articulate to an employee, especially since there is little guidance on what is considered “substantial” and views are likely to differ. Misunderstandings may also occur where the employee’s behaviour or performance contributes to the SOSR but it is not serious enough alone to justify a capability or disciplinary process. Employees may also find it difficult to understand how they can be dismissed when there is no evidence of wrongdoing or poor performance. It is therefore important for employers to explain the SOSR to the employee in as much detail as possible and to also explain why the reason is considered to be “substantial” and not trivial.
Process for SOSR dismissals
In view of the nature of SOSR dismissals, the dismissal process will need to be carefully considered taking into account all of the circumstances. In this respect, whilst strictly speaking the ACAS Code of Practice on Grievance and Disciplinary Procedures does not apply to SOSR dismissals, where elements of the ACAS Code can be applied, they should be applied and employees should be given the opportunity to make representations.
Consider all risks and options
SOSR dismissals can be helpful where there is a substantial reason for a business to dismiss an employee and none of the other potentially fair reasons for dismissal apply. However, employers should be aware of the many risks associated with this type of dismissal. In addition, the importance of effective communication of the substantial reason being relied on, taking on board the employee’s representations and considering alternatives to dismissal should not be underestimated.