3 things you need to know about dismissals for SOSR

3 things you need to know about dismissals for some other substantial reason

Your employer cannot simply dismiss you just because it feels like it. There must be a genuine reason. Section 98 of the Employment Rights Act 1996, provides 5 potentially fair reasons for dismissal, which are:

• conduct
• capability (eg skill or health) or qualifications (eg technical or professional)
• redundancy
• that an employee could not continue to work in the position which s/he held without contravention (either on his/her part or on that of the employer) of a duty or restriction imposed by or under an enactment
• some other substantial reason (SOSR) of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(1)  What does some other substantial reason mean?

There is no statutory definition or statutory guidance relating to SOSR.

Case law suggests the term ‘substantial’, but authorities confirm the reason must not be either frivolous or insignificant.

SOSR is essentially a catch-all category designed to allow your employer to terminate your employment when no other potentially fair reasons apply.

The SOSR depends on the facts and circumstances of each case.

Fairness is not the only consideration. Your employer must also act reasonably and follow an appropriate procedure before dismissing you for SOSR. Alternatives to dismissal must be considered eg moving you to a different location or department before dismissal. However, this will depend on the size of your employer and the resources it has.

When your employer is considering dismissal for SOSR, your employer must ensure that the reason for dismissal is substantial ie it has a considerable impact on the business. In other words, your employer has no choice but to dismiss you.

(2)  What is the test for fairness for determining if a dismissal for some other substantial reason is fair?

There is a 2-stage test that employment tribunals use for determining whether a dismissal is fair for SOSR.

Stage 1

Your employer has the burden of proof in showing that SOSR is the sole or principal reason for the dismissal. Here the employer only needs to establish that SOSR could justify the dismissal of an employee holding the role in question rather than necessarily showing that it actually did justify the dismissal (Willow Oak Developments Ltd v Silverwood). A tribunal must not consider the justification, reasonableness or fairness of dismissing for SOSR at stage 1.

Stage 2

Your employer must then show that the decision to dismiss for SOSR was reasonable in all the circumstances (including the size and administrative resources it has). This will be determined in accordance with equity and the substantial merits of the case. Here the burden of proof is neutral. Therefore, a tribunal will need to investigate the reasonableness of the dismissal, but the onus is neither on the employer to prove it was fair, nor you to prove that it was not (Boys and Girls Welfare Society v McDonald).

A fair SOSR dismissal process would usually involve:

• an investigation of the background leading to the potential dismissal
• exploring every possible option before deciding to dismiss you. This will depend entirely on the reason for dismissal but could include giving you warnings or exploring your working environment could be adapted
• consult with you about the potential dismissal and allow you to make representations about the decision before it has been finalised
• make sure that you are aware you have the opportunity to be accompanied by a colleague or trade union representative to any meetings relating to the potential dismissal.

(3)  What circumstances have tribunals found to be a dismissal for some other substantial reason?

Employment tribunals have found a dismissal to be fair for SOSR, in the situations (among others) as follows:

• business reorganisation (that does not fall within the statutory definition of redundancy)
• refusal to accept a change in terms and conditions of employment
• conflict of interest with an employer’s legitimate business interests
• personality clashes or irreconcilable difference between employees (where an employer has taken steps to resolve the problem)
• pressure from third parties (eg from a customer, client or supplier)
• reputational risk
• employed couples (under a joint employment contract)
• a breakdown in trust and confidence
• expiry of a fixed term contract (provided this is the real reason).

Comment

SOSR dismissals are not straight-forward and specialist employment law advice should be sought before you take any action.