Stuart Chamberlain, Senior Employment Consultant and author at Croner-i opens the lid on the frequently misunderstood SOSR dismissals and explains how they work.

If you wish to dismiss one of your employees, it must be for a “fair reason”. Section 98 of the Employment Rights Act (ERA )1996 specifies five such fair reasons for dismissal:

  • the employee’s (mis)conduct

  • their capability to do the job or a lack of requisite qualifications

  • a redundancy situation

  • a legal reason why their employment cannot continue

  • some other substantial reason (“SOSR”).

“Some other substantial reason” (s.98(1)(b)) is a “catch all”. It allows an employer to dismiss an employee when none of the other potentially fair reasons apply. It has also been described, less charitably as “a dustbin category” and an “employer’s charter”.

Features of an SOSR dismissal

There is not a great deal of assistance on its meaning from the case law. The judiciary has often been unwilling to lay down any “general rule” on SOSR. The reason for the dismissal obviously must be substantial, rather than trivial or “whimsical”. The Employment Appeal Tribunal (EAT) has variously described it as “a broad category” and explained that the “hurdle imposed by s.98(1)(b) is a modest one”. Whether something is “some other substantial reason” will depend on the facts of the case.

In resisting a complaint of unfair dismissal, it will not necessarily be easy to decide into which category the dismissal falls. It is permissible, in such circumstances, to include in the employer’s notice of appearance, for example “conduct, capability or some other substantial reason”. It will be for the tribunal then to determine into which category the dismissal falls on the basis of the facts proven by the employer.

Examples of SOSR dismissals

Some conclusions about the nature of SOSR dismissals most commonly occur in the three situations listed below.

Dismissal of replacement

The employer’s SOSR defence may apply to the dismissal of an employee who was employed on a temporary basis, usually an employee who is engaged as a replacement for permanent employees who are absent due to pregnancy or childbirth or on a medical or maternity suspension.

A pre-condition of this defence is that the employer gives a clear and unambiguous notice to the employee at the outset; this leaves no doubt about the circumstances in which the contract will end. A failure to do so will render the dismissal unfair.

It is also for the employer to show that it was reasonable to dismiss the employee. This possibly means considering whether there is an alternative vacancy for the employee who is to be dismissed.

Re-organisation and changes to terms

Where the employer engages in a reorganisation which reallocates patterns of work among the workforce, SOSR may be the reason for the dismissal of an employee who refuses to accept a change in terms and conditions, provided the employer has a sound and good “business reason” for the reorganisation. Again, the employer must show that a fair procedure has been followed in its implementation. It will, in most cases, be desirable to explain and consult with the employee or a representative, and to give the employee time to consider the proposed alterations and make representations before the change is effected.

TUPE dismissals

The SOSR reason for dismissal may also be used by the employer under amended regulation 7(2) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), when the reason for the dismissal is the transfer — but is for an “economic, technical or organisational” (ETO) reason entailing changes in the workforce and the employer and an otherwise fair procedure has been followed. The employer may argue that the dismissal is either for SOSR or redundancy.

Other reasons

Other reasons for dismissal that have been held to fall within the SOSR category, include the following.

Refusal to sign a restrictive covenant

Where a business is damaged by departing employees who are setting up in competition, the employer is entitled to protect his business interests by dismissing a remaining employee who refused to sign a new covenant (R S Components Ltd v Irwin [11973] IRLR 239).

Expiration of a temporary fixed-term contract

Terry v East Sussex County Council [1976] IRLR 332, although this may be regarded as redundancy.

Requirements of customers

In this case a major client refused to work with a particular employee (Scott Packing & Warehousing Co Ltd v Paterson). The employer also had to demonstrate that it did everything possible to avoid dismissing that employee and gave due consideration to the potential injustice suffered by the employee (Henderson v Connect (South Tyneside) Ltd [2009] UKEAT/0209/09). And the tribunal may still find that a dismissal was fair even when it caused injustice to the employee.

Personality clashes in the workforce

In such circumstances the breakdown must be irreparable and the employer must have sought to improve relationships and considered alternatives to dismissal (Turner v Vestric [1980] ICR 528 and Ezsias v North Glamorgan NHS Trust [2011] UKEAT/399/09).

An awkward personality in a senior employee

Perkin v St George’s Health Care Trust [2005] IRLR 934 — similar additional requirements apply as above.

Conviction for a criminal offence

This may be unconnected with the workplace, as in Wiseman v Salford City Council [1981] IRLR 202.

Failure to meet agreed absence procedures

In Wilson v Post Office [2000] IRLR 834), the CA judged that the tribunal had erred by construing the case as one involving dismissal on grounds of capability by reason of health, where it should have characterised the case as one involving dismissal for another substantial reason, that is, Wilson’s failure to meet the requirements of the attendance procedure agreed by him through his trade union.

Loss of trust and confidence in an employee

Although this will not necessarily mean it is fair to dismiss — the tribunal is entitled to look beyond the mere fact of the breakdown in trust and confidence, and consider the surrounding circumstances, such as the “immediate history” of the employee’s conduct leading to the dismissal (Governing Body of Tubbenden Primary School v Sylvester [2012] UKEAT/0527/11). The breakdown in trust and confidence argument must not merely be a convenient label to pin on any dismissal that does not fit neatly into the other fair reasons for dismissal (Leech v OFCOM [2012] EWCA Civ 959).

Acas Code on Discipline and Grievance

The Acas Code of Practice on Disciplinary and Grievance Procedures will apply to a SOSR dismissal that relates to the conduct or behaviour of an employee. However, the Code does not apply to an SOSR dismissal for a breakdown in the working relationship. There will be no uplift in compensation of up to 25%, therefore, for procedural deficiencies (Phoenix House Ltd v Stockman [2016] UKEAT/0264/15).

A fair procedure

Even where a dismissal is fair for “some other substantial reason”, the employer must still ensure that it:

  • Followed a fair procedure. This involves a thorough investigation; consulting with the employee; explaining the impact of any proposed changes; responding to any representations or objections raised; and considering alternatives to dismissal.

and

  • Acted reasonably in all the circumstances and the decision to dismiss fell within the range of reasonable responses.

An employer’s genuine belief that dismissal is fair

A final point: an SOSR defence may be available to the employer who genuinely believes that the reason for dismissal was fair — even when it can be shown to have no basis in fact or law. Case law here has predominantly centred on the immigration rules:

  • Over a worker’s immigration status — although the determination of this was a matter for the specialist agency and tribunals, not the EAT (Kurumuth v NHS Trust North Middlesex University Hospital [2011] UKEAT/0524/10).

  • In Nayak v Royal Mail [2016] UKEATS/0011/15, the EAT held that an SOSR dismissal due to a “genuine and reasonable belief” that the employee was no longer entitled to work in the UK was substantially and procedurally fair; similarly, in Sekisonge v Barts Health NHS Trust [2017] UKEAT/133/16, when the Home Office revoked the citizenship of an NHS trust’s employee, her dismissal for SOSR, because the employer could no longer be certain of her identity, was fair.

  • a knee-jerk reaction of immediately dismissing (for SOSR) an employee who the employer believes to be working in the UK illegally should be avoided (Baker v Abellio London Ltd [2017] UKEAT/0250/16); unless the employer carries out a full investigation, including formal meetings with the individual, the dismissal is likely to be unfair.

All such dismissals are a balancing act between the immigration legislation and the individual’s right not to be unfairly dismissed. In all the cases it is good practice to offer an appeal against the decision to dismiss. In Afzal v East London Pizzas [2018] UKEAT/0265/17, the EAT held that the SOSR dismissal for failing to provide evidence of his right to work in the UK was unfair because the employer did not allow Mr Afzal an appeal against his dismissal.

Conclusions

There appears to have been an increase in the use of the SOSR as a head of fairness by employers at the tribunal in recent years. It has a major advantage for employers: this more generalised category avoids the more detailed rules that apply to more precise heads of fairness such as misconduct and capability.

The expansion in the use of SOSR has also been at the expense of the scope of the other four potentially fair reasons for dismissal, especially redundancy.

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Last reviewed 20 June 2019