SOSR – The Art of Alternative Dismissal
Dismissing an employee for ‘some other substantial reason’ is often relied on by employers where the reason for the dismissal cannot be shoehorned into any of the other statutory fair reasons for dismissal.
What is SOSR?
It is not a call for help. ‘Some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’ - more fondly known in the employment law fraternity as ‘SOSR’ - is a residual potentially fair reason for dismissal.
To minimise the risk of claims of ordinary unfair dismissal claim, employers must be able to show that the reason (or principal reason) for the dismissal was a potentially fair reason. There are five statutory potentially fair reasons: conduct; capability; redundancy; breach of statutory restriction; and SOSR.
Although, there is no statutory definition of SOSR, the clues are in the statutory reason itself. The reason must be substantial and it must be some other reason. The reason must also be of the kind to justify the dismissal, as opposed to any lesser sanction such as, redeploying a member of staff where there are irreconcilable differences between colleagues.
When can SOSR be relied on?
Almost any reason which does not fall within one of the other potentially fair reasons for dismissal might amount to an SOSR. Over the years, SOSR has been found by the tribunals to be a fair reason for dismissal in a range of diverse situations including, dismissals arising out of business reorganisations (short of redundancy) or through employees’ refusal to accept changes to employment contracts; expiry of limited-term contracts; dismissals at the behest of third parties and in situations where an employer sought to protect its business interests. Personality clashes between colleagues have also been found to amount to an SOSR where the conflict is causing substantial disruption to the business.
What about a breakdown in trust and confidence?
The most commonly relied on SOSR is that of loss of trust and confidence, but employers should be wary of relying on this reason. Breach of trust and confidence goes to the root of the contract. The tribunals have no difficulty with employees citing breach of this implied term as grounds for constructive dismissal complaints. In contrast, employers relying on a breakdown of trust and confidence as SOSR have often been criticised by the appellate tribunal which has held that it is not sufficient merely to say that trust and confidence has broken down. Something more is required.
Can employers rely on SOSR as a reason for dismissal?
Yes. SOSR provides a potentially fair reason for dismissal in more unusual cases, but it should not:
be relied on where the reason for the dismissal of the employee falls squarely within one of the other potentially fair reasons;
be seen as a way for employers to circumvent a fair procedure for dismissal; or
used as a ‘convenient label’ to stick on any situation where the employer cannot easily rely on one of the other fair reasons for dismissal.
To avoid a finding of unfair dismissal, employers must be able to establish SOSR as the sole or principal reason for dismissal and that the decision to dismiss for SOSR was reasonable in the circumstances.