You could easily be forgiven for not having heard of SOSR Dismissals– some other substantial reason – dismissal. So, let’s explain.
An employer can fairly dismiss an employee for one of the 5 “fair reasons”
- Breach of a statutory restriction
- Some other substantial reason.
SOSR is sometimes seen as the last resort – being cynical, if the dismissal doesn’t neatly fit into one of the first 4 reasons, it gets called a SOSR dismissal.
It is rarely used and this is partly due to lack of awareness and/or understanding.
What is an SOSR dismissal?
An SOSR dismissal is a term used by employers to dismiss an employee where the dismissal reason does not neatly fit into one of the other fair reasons.
It is something of a “catch all” provision that can allow an employer to fairly dismiss an employee in circumstances where no other potentially fair reason would apply. So, it is quite commonly used in slightly unusual situation and scenarios and the phrase is not given any real statutory definition.
However, it cannot be used to justify a dismissal for something quite trivial – it must be used for something “substantial”.
When might a SOSR dismissal apply?
Breakdown in trust and confidence – there is an implied term of “trust and confidence” in the employment relationship between the parties and occasionally, a breakdown will occur for whatever reason and it is clear that the breakdown is irretrievable and there is no going back.
This is more likely to occur at senior level where there might be a “difference of opinion” and this might be related to business strategy or direction and the senior manager can no longer sit round the board room table if the views of the parties are at loggerheads.
Personality clashes may occur between employer and employee or between colleagues which renders the employment relationship difficult and the parties can no longer work effectively together.
The clash may have led to a relationship breakdown which is impacting on the business or causing disruption and in these situations, an SOSR dismissal may be an option but should only be a last resort having considered other options.
Reputational risk to the business – a business is entitled to protect its reputation and sometimes the actions of an employee may adversely compromise the reputation of the business.
Again, this is more likely to be an issue at senior level – so, for example, an employee’s actions outside work may be seen to bring about reputational damage or risk to the business or an employee may have been convicted of a criminal offence, which under normal circumstances would not give rise to a dismissal but the nature of the offence and the employee’s level within the business may cause reputational damage and could give rise to an SOSR dismissal.
Pressure from clients or third parties – quite common in out-sourcing businesses such as Facilities Management where a major client requests the removal of an employee from a contract. This would not normally be a redundancy situation and can be quite tricky because invariably the client request will be due to performance or conduct. In some situations, it may be to do with a personality clash but whilst the employer may justifiably remove the employee from the contract to protect a commercial relationship, they should exhaust all re-deployment options before relying on SOSR.
Protection of legitimate commercial interests – this could occur where an employee is in a relationship with someone who works for a competitor or a supplier and can give rise to a conflict of interest and the employer is entitled to protect their legitimate commercial interests.
Is it risky to rely on SOSR?
Nothing is without risk and if an employer relies on an SOSR dismissal, it is still necessary to act fairly and reasonably and it should only be used after all other options have been considered and exhausted.
It is also important that an SOSR dismissal is not used as a smoke screen – yes, it is something of a catch all but Tribunals are mindful that it should not be abused or over used.
The most effective way to mitigate the risk associated with an SOSR dismissal is through either a settlement agreement or an ACAS COT3.
What are the critical factors in successfully defending an SOSR dismissal at a Tribunal?
SOSR is a dismissal so an employee will need 2 years service to bring an unfair dismissal claim but whether the employer is successful in a Tribunal will depend on a multitude of factors including
- Is the reason for the SOSR dismissal such that it justifies a dismissal?
- Did the employer act fairly and reasonably in all the circumstances?
- Were alternative courses of action considered?
- Had the relationship irretrievably broken down impacting on trust and confidence?
A Tribunal will also take into consideration the size and administrative resources – the rationale for this being that the bigger the employer, the greater the chance that the employee could have been re-deployed or re-assigned.
In summary, SOSR is a fair reason for a dismissal but don’t over-use it.
Adrian Berwick provides HR Support to businesses and if you want help dealing with a difficult issue, contact Adrian on 07885 714771 or firstname.lastname@example.org