Unfair Dismissal: Some Other Substantial Reason – Part One2 October 2014
In a 3-part series we will be looking at recent developments in SOSR dismissals and how employers can benefit from this fast developing area of law.
When establishing that an employee has been dismissed fairly, an employer must first show that the reason for the dismissal falls within one of five potentially fair reasons:
- Capability/qualifications of the Employee;
- Conduct of the employee;
- Frustration by an enactment of statute (illegality); and
- Some other substantial reason.
Owing to the vagueness of the statutory provision, ‘some other substantial reason’ (SOSR) has been defined, almost entirely, by case law. Potentially, SOSR could encompass any reason for termination not dealt with by the remaining four potentially fair reasons. It is for the employer to show that a reason falls under this classification and that termination is reasonable and equitable in the circumstances.
Significant examples of reasons upheld as SOSR are as follows:
- Business re-organisation (i.e. where dismissals are not technically redundancies under S139 of the Employment Rights Acts 1996);
- Refusal to accept changes to terms and conditions;
- Breakdown in relations/personality disputes;
- Conflicts of interest; and
- Third party “pressure”.
The ACAS ‘Code of Practice on Discipline and Grievance’ will be considered by a Tribunal in a dismissal where conduct or capability is the reason for dismissal. The EAT decided in Lund v St Edmund’s School that in SOSR cases “where disciplinary proceedings are, or ought to be, invoked against an employee” the ACAS Code should also be applied. The ACAS Code does not apply to redundancy dismissals or the non-renewal of fixed term contracts.
The ACAS Code sets out six elements to a disciplinary or grievance process:
- Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions;
- Employers and employees should act consistently;
- Employers should carry out any necessary investigations, to establish the facts of the case;
- Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made;
- Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting; and
- Employers should allow an employee to appeal against any formal decision made.
A tribunal will also look at whether an employer has followed its own disciplinary procedure. If an employer does not follow its own disciplinary procedure, or at least the essential elements, this may result in a finding that the dismissal was unfair.
In Part 2, we shall be looking at specific examples where dismissals have been held to be for SOSR.