There are five potentially fair reasons for dismissal. They are conduct, capability, redundancy, breach of a statutory duty or restriction, and “some other substantial reason of a kind as to justify the dismissal” or to put it more simply, “SOSR”.
SOSR has long been referred to as a catch-all provision for potentially fair dismissals. If an employee does not fit squarely within any of the other four reasons, employers have tended to rely on SOSR.
The difficulty with SOSR is that it is not defined in statute and there is no statutory guidance on what it means. It has therefore been left to case law to develop what SOSR dismissals may constitute.
Examples from case law include:
• a breakdown in trust and confidence between the employer and employee,
• personality clashes – where the conflict has caused significant disruption to the business,
• business reorganisations – not amounting to redundancy, as this squarely falls within one of the other fair reasons,
• third party pressure to dismiss – for example from a client,
• expiry of a fixed term contract – for instance, the expiry of a fixed term maternity cover contract
• a refusal to accept changes to terms and conditions – where there are business reasons for the change and the change is not trivial.
As can be seen, there are a range of varied circumstances which may lead to an employee’s dismissal being treated as SOSR. However, employers should be cautious when seeking to rely on the “catch all” provision. Employers must still ensure that they act reasonably in all the circumstances of the case. The question of reasonableness includes considering whether the employer followed a fair procedure. For instance, as a minimum, consultation with the employee would be expected before a decision to dismiss for SOSR is made. Employers should also consider any alternatives to dismissal and only dismiss as a last resort. Further, the employee should be given the right to appeal the dismissal.
Whilst a breakdown in trust and confidence may be a common reason relied on by employers for SOSR dismissals, it should not be used to avoid following the proper procedures for other types of dismissal such as poor performance or misconduct. Indeed, the employer’s decision to dismiss for SOSR may ultimately be subject to scrutiny by a Tribunal. The Tribunal will look at the surrounding circumstances and may decide that the decision to dismiss was unreasonable and not a SOSR, treating it as unfair.
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