Dismissing an employee is never an easy thing to do, but sometimes it is unavoidable. Employers need to ensure they have a fair reason for dismissal as failing to do so could result in being brought before an employment tribunal.
Avensure recently ran a client training webinar on SOSR. SOSR is an abbreviation for ‘some other substantial reason. Employment tribunals frequently state that the context is crucial in cases involving SOSR.
In this article, we share some of the questions raised by business owners regarding dismissal for some other substantial reason (SOSR).
What is Dismissal for SOSR?
There are five fair reasons for dismissing a member of staff:
- Capability (including medical capability)
- Statutory Restriction
- Some other substantial reason (SOSR)
Where the first four 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 some other substantial reason (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, and a fair SOSR dismissal procedure should always be followed.
Examples Of Situations Giving Rise To Potential SOSR Dismissals
There isn’t an exhaustive list by any means, but below are the kinds of circumstances or scenarios that could justify a dismissal for SOSR:
- Personality clashes between employees. Where the employment relationship is simply unmanageable and attempts to rectify the situation have failed a SOSR dismissal is usually the appropriate course of action.
- 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, the contract is terminated and a new contract with the revised T&Cs is imposed. If the employee doesn’t accept the new terms, their employment with SOSR will end.
- The end of a fixed-term contract, e.g., a contract for maternity leave cover or a contract for a time-limited project
- Third-party pressure. A third party instructs the employer to remove an employee from a contract or site. For example, 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 you have no other work to offer the employee, this may trigger a dismissal for some other substantial reason.
- Reputational risk or damage— ASOSR dismissal can also be triggered by the actions of an employee (possibly outside working hours) that have brought the reputation of the company into serious disrepute.
SOSR Dismissals For Employers FAQs
Q: Where two employees are in conflict and there is a clash of personalities, could this also be a conduct issue?
There is often some cross-over with conduct in such situations.
If there is an argument resulting in unprofessional conduct during working hours and on work premises, then yes. However, if, for example, there is a breakdown in the relationship outside of work but they cannot work together, then it is likely to be an “other substantial reason for dismissal”. Also, if a grievance has been raised but the findings do not justify dismissal and the two parties are determined not to work together, this may be counted as “some other substantial reason dismissal”.
The onus is on the employer to try to avoid this route and explore all possible options to work with the employees to rectify the situation. For example, separating the two employees or engaging in mediation to try and repair the relationship before proceeding with the SOSR dismissal procedure would be preferable.
Q: If there is a conflict between two employees and dismissal for SOSR is being contemplated, who would be dismissed, would it be both employees, if you dismissed just one could this amount to an unfair dismissal?
This depends very much on the specific circumstances of the case and why an investigation prior to any formal action is key. If, for example, one employee was open to resolution but the other was not, this may justify the SOSR dismissal of only one.
You are correct in highlighting the risk of unfair dismissal. If the decision was taken to dismiss one employee and not the other and that decision was taken unreasonably, or the some other substantial reason dismissal decision was linked to a protected characteristic- there would be an unfair/automatic unfair dismissal risk and risk of a discrimination claim.
Q: Where an employee is dismissed from an old contract and re-hired on a new contract, if there was a break in service, would the employee have continuity of service?
If an employee did not accept new terms and conditions following a consultation, was served their notice under the contract and then returned to the business following a break period of one complete week, running from Sunday to Saturday between the two contracts of employment, their continuity of service may not be protected.
However, employers should not deliberately seek to break the service to subject employees to a detriment.
Q: If an employee has under two years’ service and is not progressing at a level they should be, would this be dealt with as a capability issue, or would it be an SOSR dismissal?
If an employee is underperforming, it is likely to be conduct or capability so should be dealt with under the disciplinary or capability procedures. If the reason for dismissal fits into one of the other 4 fair reasons for dismissal (conduct, capability, redundancy or statutory ban), conducting a SOSR dismissal process will not be a justifiable reason for dismissal.
In respect of the need to carry out a fair procedure if the employee has under two years’ service, it’s always best to use the correct procedure because if the procedure is ever scrutinised by an employment tribunal (e.g., the claim is linked to discrimination), any flaws could come back to haunt. If your documents are drafted by Avensure, you are likely to have a short service clause inherent in the conduct and capability procedures that would allow fair dismissal after a hearing but without having to build upon a succession of warnings prior to dismissal.
Q: In a charity organisation where roles are funded; would contracts need to be fixed term and if funding is withdrawn, triggering the end of the role, is this SOSR or redundancy?
A fixed-term contract can be drawn up to cover a specific role if it is only funded for a set time period- so if you know the end date of the funding and hence the end date of the role, a fixed-term contract (with an end date) can be used.
If the funding for a role ends unexpectedly and the work the employee was employed to carry out ends as a result, this will be a redundancy and not dismissal for some other substantial reason..
Be advised though that in either scenario, if the employee has two years’ service by the time the contract ends, they may be entitled to redundancy pay.
Q: If third-party pressure requires you to remove an employee from the site, but you are able to offer alternative work at a different site if the employee turns the work down (even though the role is on the same hours and pay), is this a SOSR dismissal or is it a resignation?
Unless the employee tenders their resignation, the employer should not infer the employee has resigned.
Instead, the employer should try to find out why the role is being turned down but, in the event, a suitable alternative is not found, the employee will be dismissed for SOSR.
Q: An employee has posted something on social media outside work which has the potential to cause reputational damage. If after following a fair process, you conclude the conduct will lead to reputational damage if seen by customers, would this give you grounds for dismissal?
Potentially it would but only if it can be reasonably foreseen that reputational damage will occur.
For example, if the post has not yet been seen by customers, but it’s been posted somewhere like LinkedIn where your business is directly linked to the employee’s profile, you should instruct them to take it down to protect the reputation of your business. If they refuse- this could give rise to grounds for dismissal if the content is at odds with the ethos of your business.
Q: If there is a breakdown in the employment relationship and there is a repeated threat from the employee that they will hand in their notice, but they don’t, would this trigger a dismissal for SOSR?
If the employer has tried to resolve any disputes and the employee is unwilling to move forward, this may give rise to dismissal for SOSR.
Before implementing the dismissal for some other substantial reason process the employer should ensure that they have made real efforts to resolve the issue, for example, by use of the grievance procedure and/or via mediation.
Q: Can we dismiss someone for SOSR who is constantly threatening to raise a grievance but won’t confirm or decide what to do?
There can be a breakdown in the employment relationship when someone is unwilling to work with the employer to resolve a dispute.
Grievances should be raised and dealt with in a timely manner. If an employee says they wish to raise a grievance, contact us for advice, and we can advise you on how to respond by reminding the employee of their rights under the grievance procedure.
However, internal procedures, such as the grievance procedure, are not sticks to beat the employer with. If someone were to abuse internal procedures to disrupt the business persistently and deliberately, this could give rise to a breakdown in the employment relationship and result in a dismissal for SOSR.
Q: If you have a member of staff who repeatedly does not turn up for work with no explanation, repeatedly gets signed off sick, and is a liability when on site, is this SOSR?
No, this is a conduct issue and not grounds for a SOSR dismissal. Their persistent absence, if general in nature (i.e., not linked to disability or pregnancy), and poor conduct on-site should be dealt with under the disciplinary procedure.
If they are medically incapable of carrying out their role, this may be a medical capability matter where permission for a medical report is requested, or they may be referred to occupational health to establish if they are medically fit to continue in the role they are employed to do.
SOSR employment law shouldn’t be used where the employer feels other avenues are ‘too slow’ or they haven’t managed other issues (such as high absenteeism) appropriately and are now looking for a ‘quick fix’. SOSR dismissals must be for a genuine and substantial reason.
If you’re looking for advice on substantial reason for dismissal, how to dismiss employees fairly, want to understand the potential risks, or want step-by-step guidance through the disciplinary and SOSR dismissal process, please contact our employment team. Simply click here: Avensure Contact!