Unfair Dimissal: Some Other Substantial Reason – Part Two8 October 2014
In part 2 of a 3 part series on SOSR dismissals, we look at some examples of situations held to be SOSR.
Breakdown in relations
The case of Ezsias v North Glamorgan NHS Trust established that a breakdown in relations can be classified as SOSR. In this case Mr Ezsias was dismissed due to a breakdown in the working relationship between him and his colleagues. The employer put forward that the dismissal was due to the breakdown rather than the employee’s conduct which lead to the breakdown. The Employment Tribunal held that Mr Ezsias was dismissed for SOSR rather than misconduct.
The case of Governing Body of Tubbenden Primary School v Mrs K Sylvester also shows that a breakdown in relations can be cited as SOSR, however it also provides that the circumstances leading up to the breakdown in relations i.e. the conduct of the parties is relevant in deciding whether a dismissal is fair or unfair.
Refusal to accept changes to terms and conditions;
An employer may wish to vary the terms of an employee’s contract. This should only be done in line with the terms of the contract, or on both parties’ agreement. Should an employee refuse to accept a proposed change to the terms and conditions of their contract and they are consequently dismissed, this may be deemed as a dismissal for SOSR. Sandford and another v Newcastle upon Tyne Hospitals NHS Foundation Trust dealt with an example of this.
In Sandford, the employer had re-banded the posts of 22 employees in a reorganisation. Two of the 22 employees refused the change and were consequently dismissed. The employees brought proceedings for unfair dismissal. The employer relied on SOSR for the reason of dismissal. The tribunal found that SOSR had been established.
The Sandford case shows that where a significant majority of employees accept the changes to the terms and conditions of their contracts, it is unlikely that the dismissal of the dissenting few will be deemed unfair, if the dismissal is based on their refusal to accept the changes.
An employer must be able to demonstrate that a unilateral change to a contract was not imposed arbitrarily but for a sound business reason. The reason does not need to be crucial to the survival of the business. Where a change amounts to a fundamental breach of contract, an employee may resign and bring proceedings for (unfair) constructive dismissal.
A business may undergo a restructuring without imposing any redundancies. In this event, related dismissals could be for SOSR. The recent case of Killen v Brunel University confirmed this. In this case the employer restructured and the employee was consequently required to interview for her position and subsequently dismissed in favour of a more impressive candidate. The ET in this instance found that SOSR could be relied upon. There had not been a relevant reduced requirement for employees, and therefore a redundancy situation had not arisen.
Conflicts of interest
A situation which creates a potential conflict of interest to the employer’s business interest may also qualify as a SOSR (although a serious conflict may also be ground for misconduct).
For SOSR to arise, an employer will be required to show that the employee had access to confidential information, had close connections with a competitor or employee of a competitor and there was a legitimate fear that the employee would share such information. An employer must show that it would create a real commercial risk to continue to employ the employee.
Occasionally an employer will dismiss an employee due to a third party e.g. at a client’s request. The importance of a third party’s business and the seriousness of any threat to leave must be considered. It would also be advantageous if the employer had anticipated the scenario in the employment contract.
The recent case of Jafri and Lincoln College is an example where a third party may result in the dismissal of an employee and therefore fall under SOSR. In this case the employee was employed by a college and was required to carry out his role at a prison. Due to a complaint which was subsequently found to be false, the employee was excluded from the prison and subsequently reinstatement was refused by the prison governor. The employee was found to have been dismissed due to SOSR. The dismissal was found to be fair due to the employer’s endeavours to reverse the employee’s exclusion from the prison and to find him alternative employment.
The recent case of Tarzi v Securitas Security also serves as an example of when a third party can lead to the dismissal of an employee. In this instance Gatwick Airport’s refusal to accept a security guard (involved in a previous incident) was found to be an SOSR dismissal.
In part 3 we will look at the procedures necessary to make a potentially fair SOSR dismissal fair.