Guide to Dismissing an Employee for Some Other Substantial Reason (SOSR)

The five fair reasons for dismissal as set out by the Employment Rights Act 1966 are:

1. Capability: If a person lacks the skills, qualifications or ability to perform the job role.

2. Conduct: If the employee has committed gross misconduct, or received previous warnings for serious misconduct.  

3. Redundancy: If the role is no longer required by the organisation.

4. Legal reasons: If the continuation of employment would cause legal issues, such as a teacher being unable to pass a DBS check.

5. Some other substantial reason (SOSR)

What is Some Other Substantial Reason (SOSR)?

SOSR is a unique category that encompasses various justifiable grounds not covered by the other four reasons. SOSR allows for dismissal when a reason is significant, justifiable, and does not fall within the other potentially fair reasons. It should not be an insignificant or frivolous reason but should justify the dismissal of an employee carrying out a particular role.

Common Examples of SOSR:

1. Business Re-organisation:

   • If the business undergoes restructuring without making redundancies, SOSR may be a potentially fair reason for dismissal. This often involves changes to employees' terms and conditions, and dismissing an employee for refusing these changes, whether within or outside a re-organisation, can constitute SOSR.

2. Refusal to Accept Changes to Terms and Conditions:

   • Employees have the right to resist unilateral changes to their terms. However, if an employee refuses a change and is dismissed for that reason, it may constitute SOSR. To qualify, the business must demonstrate a "sound business reason" for the change, and the change should not be trivial.

3. Conflicts of Interest:

   • Dismissing an employee for SOSR is possible if their situation creates a potential conflict with the business's interests. The business must show evidence that the employee posed a genuine risk, such as having access to commercial information or close connections with a competitor.

4. Personality Clashes:

   • Irreconcilable differences between colleagues may amount to SOSR if causing substantial disruption to the business. Before resorting to dismissal, reasonable steps such as re-deploying, changing work patterns, or mediation should be considered.

5. Pressure from Third Parties:

   • If a third party, like a customer or supplier, requires an employee's dismissal, it can be fair for SOSR. The business should assess the importance of the third party to its own business and the severity of the threat from the third party.

6. Breakdown in Trust and Confidence:

   • A breakdown in trust and confidence may lead to dismissal under SOSR. It should be demonstrated that the breakdown is substantial, and the business has explored reasonable alternatives before considering dismissal.

Substantial Reason Dismissal Process

There’s no set process for SOSR dismissal. However, you should ensure that your company’s dismissal process is followed to reduce the risk of potential unfair dismissal claims.

The reason for the substantial reason dismissal may affect the process that you follow slightly. For example, if you’re dismissing an employee who has come to the end of a fixed term contract, there is no need to provide a warning or hold a disciplinary hearing. However, you should provide the employee with adequate notice and ensure that you communicate the decision effectively.

Here are a few tips to follow during the SOSR dismissal process to ensure that it is done fairly and reduce the chances of an unfair dismissal claim in the future:

• Fully investigate any evidence on which you are relying for the dismissal to ensure that it is as objective and robust as possible.

• Explore every possible option before deciding to dismiss the employee. Of course, this will depend entirely on the reason for dismissal, but may include giving the employee warnings or exploring how the working environment could be adapted.

• Consult with the employee about the potential dismissal and enable them to make representations regarding the decision before it is finalised. You should ensure that any representations made by the employee are taken fully into consideration before a final decision is made.

• Ensure that the employee is aware that they have the opportunity to be accompanied by a trade union representative or a colleague to any meetings regarding the potential dismissal.

Conclusion

Dismissing an employee under SOSR demands careful consideration, adherence to legal standards, and a demonstration of valid and justifiable reasons. Employers should seek legal advice, gather sufficient evidence, and explore alternatives before taking this significant step. Adherence to fair and transparent processes minimizes the risk of legal challenges and upholds the principles of justice in the employment relationship.