To dismiss an employee lawfully, have to be able to provide a fair reason.
There are five potentially fair reasons for dismissal set out under section 98 of the Employment Rights Act 1996. These relate to employee conduct, capability and performance, redundancy, breach of a statutory restriction or Some Other Substantial Reason (SOSR).
What is an SOSR dismissal?
Dismissal for some other substantial reason (SOSR) is a catch-all category designed to allow employers to terminate an employment contract when no other potentially fair reasons apply. The SOSR depends on the facts and circumstances of each case. There is no helpful statutory definition of the term ‘substantial’, but authorities confirm the reason must not be either frivolous or insignificant.
In practice, SOSR dismissal could include situations where:
- There is a clash of personalities, which means that employees cannot work together. Although a breakdown in employee relations might be a fair reason for dismissal, it would have to be relatively extreme to justify dismissal. Therefore, it should be viewed as a last resort and used only when it becomes a business-critical issue.
- There is a conflict of interest to keep employing the member of staff. A situation may arise where the aims of two different parties are in conflict, such as when employees have an outside interest in a competing business or where they have a close connection or relationship to someone who works for a competitor.
- Reputational risk. This occurs in situations where continuing to employ the member of staff risks your business and its reputation. This scenario is very fact sensitive, but if you are in an industry that requires a high level of safeguarding or confidence, it is more likely that if an employee’s behaviour goes against the confidence and trust required, their dismissal will be viewed as fair.
- The employer wants to change the employee’s terms and conditions, but they do not want to accept the new terms. Where an employee refuses to accept a change to their terms and conditions, the only option available may be to give them notice to terminate their employment and offer to re-engage them on new terms. This is commonly referred to as ‘fire and rehire.’ In order to demonstrate this is a fair reason for dismissal, you must be able to show you were implementing the changes for ‘sound business reasons’. This test is not particularly onerous, so provided you can show you were doing so for business reasons and demonstrate this with evidence, as opposed to some arbitrary reason, it is probable that the employment tribunal will agree you have a fair reason for dismissal.
- Return to work of the employee they were taken on to replace. If you take someone on as temporary cover for a permanent employee who takes family leave, for example, and dismiss them for an SOSR reason, it is likely to be viewed as fair. It is advisable to make sure at the outset they are aware the permanent employee will return, and covering their absence is the purpose of their employment. You must still follow a fair dismissal procedure, including considering if there are any other suitable vacancies within the business.
- There is pressure from a third party. This could happen if a client refused to work with a business unless the employee is dismissed. This situation is probably the most commonplace within a small business and commonly arises in industries where the employer provides employees to work on customer or client’s sites, such as maintenance personnel, contract cleaners or security guards, for example. In these circumstances, if the customer says they do not want the employee to work on their site any longer and there is no other location for them to work, then it is likely that SOSR dismissal will be deemed fair.
- Expiration of a fixed-term contract . Short term contracts are often used to cover particular projects or busy periods. When the project has ended or the busy period slows down, the employee may be dismissed under SOSR. It is important to note that the line between redundancy and SOSR for dismissal for the expiration of a fixed term contract is extremely fine, so it is wise to seek advice about this if you are uncertain.
Fairness is not the only consideration. Employers must also act reasonably and follow an appropriate procedure before dismissing the employee. Alternatives to dismissal, such as moving the employee to a different location or department, should always be considered before moving to dismissal. However, whether this can be achieved tends to pivot on the resources and size of the organisation in question.
When you are considering SOSR dismissal, it is vital you ensure that the reason for dismissal is substantial. This means that the reason for dismissal should have a considerable impact on the business. Otherwise, you could be putting your business at risk of unfair dismissal claims.
It is also important to make sure that dismissal is the only available option. This means you will have to have given appropriate warnings or investigated other possibilities, such as moving the employee elsewhere within the organisation, being resorting to dismissal.
Test for determining if SOSR dismissal is fair
The process of deciding whether or not a dismissal is fair also takes into account the process that has been followed, and whether the decision to dismiss the employee was reasonable in the particular circumstances of the case.
There is a two-part test that employment tribunals use for determining whether an employee was fairly dismissed for SOSR. First, an employee needs to establish that the SOSR was the reason, or at least, the principal reason, for the dismissal. Following this, the employment tribunal will consider reasonableness, and look at the relevant circumstances, including the administrative resources and size of the organisation. This allows it to decide whether the dismissal falls within the “range of reasonable responses” that was open to it.
It is still possible for a tribunal to find that an employer dismissed an employee fairly, even if they failed to follow a fair procedure. In the recent case of Gallagher v Abellio, the tribunal found that the relationship between an employee and her supervisor had utterly broken down and following a fair procedure would not have served any purpose because the employee had no desire to remain with the organisation. The Employment Appeal Tribunal found that dismissing the employee without following a fair process, in this case, fell into the band of reasonable responses.
A word of warning here. Gallagher is an exceptional case and does not give employers carte blanche to do away with a fair procedure in every SOSR dismissal. Following procedural fairness is vital because it goes to the reasonableness of your decision. Even if employers do not follow their company’s full disciplinary process, they should still consider implementing other procedural safeguards, such as whether there are alternatives to dismissal and consulting with the affected employee.
What does not fall under SOSR?
There are certain situations where SOSR dismissal cannot be used. This includes cases where dismissal for any reason would be deemed as automatically unfair. Automatically unfair dismissal describes those circumstances where the dismissal of an employee violates the worker’s statutory employment rights. In such cases, the dismissal is classed as automatically unfair, meaning the employee would have a case in an employment tribunal.
There are more than sixty separate reasons an employee could claim automatic unfair dismissal. These include:
- Being pregnant, on maternity or paternity leave
- Taking action over a health and safety matter
- Being a member of a trade union or taking part in official industrial action
- Making a request for flexible working
- Taking part in jury service
- Refusing to work over 48 hours in one week
- Insisting on being paid the National Minimum Wage
- Being forced to retire
Should an employee believe they have been unfairly dismissed, they can appeal through the company’s appeals process. If this proves to be unsuccessful, they can make a claim to an employment tribunal for unfair dismissal.
Procedure for SOSR dismissal
It is important to be aware that the reason you have chosen for the SOSR may affect the process that you follow. For example, if you dismiss an employee whose fixed term contract has ended, there is no requirement to give them a warning or hold a disciplinary hearing. That said, you should provide the employee with sufficient notice and make sure you communicate the decision effectively. You should follow your organisation’s relevant procedure to minimise the risk of an unfair dismissal claim.
Dismissing an employee is rarely straightforward and demands a lot of careful consideration. In most circumstances, a dismissal should follow formal warnings and disciplinary hearings to give the employee the ability to make any representations in their defence. A manager with adequate authority will be sufficient to make the decision to dismiss the employee. They should then give the employee the reasons for the dismissal, whether they are required to work their notice period, and their right to appeal the decision.
It is good practice to follow these tips during the SOSR dismissal process to make sure that it is done fairly and reduces the risk of a claim for unfair dismissal in the future:
- Fully investigate any evidence on which you rely or are basing your decision on to make sure that it is as robust and objective as possible.
- Try to explore every possible option before deciding to dismiss the employee. This will depend entirely on the reason for dismissal but could include giving the employee warnings or exploring how their working environment could be adapted.
- Consult with the affected employee about the potential dismissal and allow them to make representations about the decision before it has been finalised. Any representations made by the employee should be fully taken into consideration before making a final decision.
- Make sure that the employee is aware they have the opportunity to be accompanied by a colleague or trade union representative to any meetings relating to the potential dismissal.
- If you are unsure about the SOSR dismissal process, or whether you have a fair reason for dismissal, it is sensible to take advice from a professional to avoid the risk of legal action being taken.
If an employee is dismissed for SOSR, they are typically entitled to receive full pay for the length of their notice period, whether or not they have worked their notice. In many cases of SOSR dismissal, the employee is placed on ‘garden leave’, which means they are not required to work during their notice period. They should still be paid for that notice period, as well as any untaken annual leave entitlement, commission, or expenses to which they are entitled.
DavidsonMorris’ HR specialists advise on all aspects of workforce management and workplace policies and procedures. For advice on developing and implementing a dress code or work uniform policy, or for advice on uniform-related disputes, contact us. You can also access unlimited legal advice from our employment law experts, without the worry of costs, through our Triple A service.
SOSR dismissal FAQs
What is an SOSR dismissal?
SOSR dismissal is a wide term used by employers to dismiss employees where that dismissal does not neatly fit into one of the other fair justifications.
What does SOSR mean?
SOSR stands for dismissal from employment for Some Other Substantial Reason that does not fall with the five potentially fair reasons for dismissal under The Employment Rights Act 1996.
What are the 5 reasons for dismissal?
The five potentially fair reasons for dismissal are: capability, conduct, breach of statutory restriction, redundancy, and SOSR.
Do you pay notice for SOSR?
When an employee is dismissed for SOSR, they are generally entitled to receive full pay for the duration of their notice period, whether or not they are required to work that notice.
Last updated: 16 March 2022