In the United Kingdom, employers can dismiss employees on the grounds of five potentially fair reasons as specified under the Employment Rights Act 1996 (“ERA 1996”) of employment law, namely:
- breach of a statutory restriction;
- and SOSR (Some Other Substantial Reason).
Usually, if an employer doesn’t have a substantial reason to dismiss an employee that fits evenly within any of the other four (more prescribed) reasons, they rely upon the “catch-all” provision of SOSR.
Having said this, it is important to know that this term is not defined by statute and neither is there any statutory guidance that specifies its scope. Rather, it has been left to case law to determine the type of reasons that can be relied upon under the SOSR umbrella.
Without further ado, let us take a closer look at the various attributes of SOSR dismissals.
What Does Dismissal For “Some Other Substantial Reason” Mean?
In case an employee claims unfair dismissal, the employer must demonstrate in front of an employment tribunal that they had a potentially fair reason for dismissing the aforementioned employee.
Furthermore, they need to show that they have acted reasonably, investigating all circumstances before dismissing the employee for any one of the potentially fair reasons, namely capability; conduct; contravention of a statutory duty or restriction and redundancy.
These reasons are defined under the section 98 of the Employment Rights Act 1996. If none of these reasons apply, the SOSR or “some other substantial reason” may be used to justify the employee’s dismissal.
List of Possible Reasons that Qualify as SOSR
To date, the list of potential dismissals under SOSR comprise:
- business reorganisation (another term for redundancy);
- a breakdown of trust and confidence between employer and employee;
- refusal to accept changes made to work policies;
- protection from competition;
- the expiry of long-term contracts;
- and personality clashes.
Despite this list of reasons, the use of SOSR is relatively limited as it can be regarded with some suspicion in an employment tribunal.
Usually, such cases are looked upon by the tribunal as if the employer had used SOSR as a pretext to conceal another real conduct reason behind an employee’s dismissal. After all, it has long been established that in cases wherein the facts fairly fall within one of the four more prescribed reasons (listed above), they cannot simultaneously be SOSR as well.
Having said this, one of the most commonly relied reasons for SOSR is that of a loss of trust and confidence between employer and employee, and this reason has been reviewed the most among others in the employment tribunals.
Among the most notable cases in relation to SOSR dismissals on the grounds of lost confidence include the recently published cases of the Governing Body of Tubbenden Primary School v Sylvester, which adds to the decisions of McAdie v Royal Bank of Scotland, Perkin v St George’s Healthcare NHS Trust, and Ezsias v North Glamorgan NHS Trust.
Breakdown In Trust And Confidence
In case trust and confidence break down between the employee and employer, it can be SOSR for dismissal.
Employers should, however, proceed with caution and refrain from simply asserting that trust and confidence have been broken and SOSR was the only possible way to dismiss a troublesome employee.
On the contrary, the real reason may be poor performance or misconduct. If that happens then employers should not use the breakdown of trust and confidence to avoid following fair procedures before sanctioning the dismissal.
Conflict of Interest
Sometimes, a conflict of interest may arise during employment, like where an employee could have a close relationship with someone who is employed with a competitor.
In order to establish SOSR for dismissal in such circumstances, the employer first needs to demonstrate that continuing the employment would give rise to a tangible commercial risk due to a possible conflict of interest. Subsequently, the employer will need to review the employee’s access to confidential information and the level of the relationship in question, before proceeding with the dismissal.
Expiry Of A Fixed-term Contract
The termination of any fixed-term contract does count as a dismissal. In cases, wherein such a contract expires, the employers often rely on redundancy as the main reason for dismissal.
Furthermore, SOSR may be more appropriate in some cases because the definition of redundancy does not apply.
For example, where the contract covers the absence of a permanent employee so that there is no reduction in the need for employees to carry out the job, SOSR seems a valid choice.
Overall, the expiry of the fixed-term contract could be a plausible reason for the dismissal as the employee is duly informed that the employment was for a particular period only.
In cases pertaining to SOSR, employment tribunals often make it clear that the context is extremely important, especially when looking at case authorities.
While dealing with SOSR cases involving a breakdown of trust and confidence, tribunals are not simply confined to identifying whether the dismissal was based on SOSR and looking no further into the case. Rather, the tribunal makes it clear that they are indeed entitled to take substantial merits and immediate history of each case into consideration.
On the other hand, employers should seek to rely on previous case law when citing SOSR as a reason for dismissal. Remember, if the employer does not adhere to the appropriate procedure as outlined in the employment law and the Employment Act 1996, before terminating an employee can qualify as unfair dismissal.