Employers have the right to terminate an employee’s contract of employment for a variety of reasons, but in certain situations, the reason for dismissal may not fit neatly into the traditional categories of misconduct, capability, redundancy, or illegality.
In these cases, an employer may consider using the catch-all provision of “some other substantial reason” (SOSR) to justify the dismissal. To fall within in an employer must show that the reason (or principal reason) for dismissal is a “substantial reason of such a kind as to justify the dismissal of an employee holding the position which the employee held” AKA SOSR.
What is an SOSR Dismissal?
An SOSR dismissal is a type of termination of employment that falls outside of the four categories of dismissal that are commonly used in UK employment law. SOSR dismissals are typically used when the reason for the dismissal does not fall within the traditional categories of misconduct, capability, redundancy, or illegality ad most commonly apply to action taken by the employer to protect its business.
Examples of situations where an SOSR dismissal may be appropriate include:
- A breakdown in trust and confidence between the employer and employee that cannot be resolved;
- A significant change in the requirements of the job, such as a relocation or a change in working hours, that the employee is unable or unwilling to accommodate;
- Confidentiality and competition issues;
- Dismissal at the request of third parties; and
- Business reorganisations, such as where an employee refuses to accept a change in terms and conditions as part of that reorganisation.
When Can an Employer Use an SOSR Dismissal?
In order to justify an SOSR dismissal, the employer must be able to show that the reason for the dismissal was both substantial and reasonable. This means that the reason for the dismissal must be significant enough to justify the termination of the employee’s contract of employment, and the employer must have acted reasonably in treating the reason as sufficient to justify dismissal.
To determine whether an SOSR dismissal is reasonable and justified, a tribunal will consider the following factors:
- The reason for the dismissal and whether it falls within the scope of SOSR;
- Whether the employer acted reasonably in treating the reason as sufficient to justify dismissal; and
- Whether the employer followed a fair procedure in dismissing the employee.
It is important to note that an SOSR dismissal must be the last resort, and the employer must have explored all reasonable alternatives to dismissal before resorting to this type of termination.
How to Handle an SOSR Dismissal
If an employer is considering using an SOSR dismissal, they should follow a fair procedure that is consistent with the ACAS Code of Practice on Disciplinary and Grievance Procedures. This includes:
Informing the employee of the reason for the dismissal and consulting with them;
- Alternatives to dismissal, such as alternative employment or relocation, were considered;
- Giving the employee an opportunity to respond to the reason for dismissal;
- Considering any mitigating factors that may impact the decision to dismiss;
- Providing the employee with the opportunity to appeal the decision.
If an employee believes that they have been unfairly dismissed under SOSR, subject to having 2 years continuous service, they can bring a claim for unfair dismissal.
SOSR dismissals can be a useful tool for employers when the reason for dismissal does not fall neatly within the traditional categories of misconduct, capability, redundancy, or illegality.
However, employers must be able to show that the reason for the dismissal was both substantial and reasonable and that they followed a fair procedure in dismissing the employee.
Lloyd Clarke is a Partner of Attwells Solicitors LLP and heads up the Firm’s Employment Law Department. Lloyd is a member of the Employment Lawyers Association and operates flexible funding arrangements including popular retainer packages, fixed fees and reduced hourly rates.
Contact Lloyd Clarke on 01206 239761 for a free telephone consultation.