There are 5 fair reasons for dismissing a member of staff:
- Capability (including medical capability)
- Statutory Restriction
- Some other substantial reason (SOSR)
What is SOSR?
Where the first 4 reasons for terminating an employee’s contract do not apply, yet there is a justifiable reason to terminate the employment contract, this is likely to be a dismissal for SOSR.
It\\\\’s often referred to as a ‘catch-all’ which can be misleading because all dismissals should be fair and to be fair, there must be a valid reason.
So simply taking a dislike to someone and not quite being able to put your finger on why you don’t like them, is not an example of a fair reason for dismissal under SOSR. SOSR is also not a justification for failing to follow a fair procedure.
Are there any examples of SOSR dismissals?
The below isn’t an exhaustive list by any means but the below are the kind of circumstances or scenarios that could justify a dismissal for reason of SOSR:
- Personality clashes between employees. Where the employment relationship is simply unmanageable and creating a toxic work environment. Attempts previously to try and rectify the situation, such as through mediation, have failed.
- Changes to terms and conditions of employment. Where the employer has to make changes to the existing contracts of employment for a genuine and essential business need. Following consultation with the staff, mutual agreement and acceptance of the changes has not happened and as a result the contract is terminated and the new contract with the revised T&C’s is imposed. In that situation the employee will either accept the new contract and carry on working or their employment will end for reason of SOSR.
- The end of a fixed term contract. For example, a contract for maternity leave cover will end on the return of the original post holder. This is not a dismissal for any of the first 4 reasons above, instead it will be classed as SOSR.
- Third-party pressure. Here a dismissal takes place due to a third-party applying pressure or instructing you as the employer to remove someone from their contract. An example of this may be where the employer is a cleaning company and has a contract to provide cleaning services to a GP surgery. The GP surgery asks you to remove your cleaner from their contract and provide someone else. Where your client will not reconsider their decision (perhaps additional training is all that is required to remedy whatever they have cited as the issue), and you have no other work to offer the employee. This will trigger a dismissal for SOSR.
- Reputational risk or damage– please see last week’s article on the issue of reputational damage for more information on this
- Breakdown in trust and confidence. This example is similar to personality clashes but concerns the overall employment relationship between the employee and the employer. Perhaps the employee simply will not accept or appropriately engage with the management structure in the company. Perhaps they have raised various grievances which the company has done their level best to resolve, yet the employee simply won’t accept the decisions.
However, if the trust and confidence breach is due to the conduct of the employee, this is a conduct issue and should be dealt with as such.
- The burden of proof is on you as the employer to justify that SOSR is the primary reason for the dismissal
- The decision must be reasonable. This will primarily come down to following a fair procedure. This will involve:
- An investigation
- A fair hearing- where appropriate notice is given and the right to be accompanied. The employee should be able to see any evidence and be able to fully put forward their defense or relevant statements/mitigation.
- A fair consideration of all material facts and possible alternatives to avoid a dismissal
- A decision issued in writing setting out the reasons for the dismissal
- The right to appeal the decision
Advice must be sought before taking action to dismiss any employee- don’t delay, contact our experts.
Next week- Top tips on performance managing your staff