SOSR is an abbreviation for ‘some other substantial reason’, which is one of the five fair reasons for dismissal. SOSR was designed to cover the scenarios that don’t fit into the other four categories for dismissing an employee, but it often leaves employers with questions. So, what is SOSR dismissal and when can you use it?
In this article, we’ll explain the key principles that you should follow when deciding whether you have a substantial reason for dismissal, as well as providing you with some examples of where SOSR dismissal has been used fairly in the past.
When Can An Employee Be Dismissed?
Dismissing an employee is never an easy thing to do, but sometimes it is unavoidable. However, you’ll need to ensure that you have a fair reason for doing so, or you could end up being taken to an employment tribunal for unfair dismissal.
The 1966 Employment Rights Act sets out the five reasons for fair dismissal. Of course, there is still the potential for an employee to disagree with the fairness of the dismissal and to take the case to the employment tribunal for assessment.
The five fair reasons for dismissal as set out by the Employment Rights Act 1966 are:
- Capability – If a person lacks the skills, qualifications or ability to perform the job role.
- Conduct – If the employee has committed gross misconduct, or received previous warnings for serious misconduct.
- Redundancy – If the role is no longer required by the organisation.
- Legal reasons – If the continuation of employment would cause legal issues, such as a teacher being unable to pass a DBS check.
- Some other substantial reason (SOSR)
We’ve explained the five reasons why an employee can be fairly dismissed, but what counts as ‘some other substantial reason’ and when can it be used? Read on to find out.
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What Is Dismissal For Some Other Substantial Reason?
There are some scenarios that don’t fit neatly into the other four fair reasons for dismissal, but could still be seen as a justifiable reason for dismissal. SOSR acknowledges that occasionally there are situations where an employee can be fairly dismissed without one of the other four categories for dismissal being applicable.
The Employment Rights Act 1966 states that ‘some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held’. However, this guidance does not provide specific examples to set out what counts as a substantial reason and when this type of dismissal is fair. For this reason, each case needs to be judged on the facts and circumstances that surround it.
Substantial Reason For Dismissal Examples
It is not possible for specific examples of substantial reasons for dismissal to be written in law. This is because every individual situation is different and must be judged on the unique circumstances. However, we can look at previous cases to understand where SOSR dismissal has been fairly used in the past.
Let’s take a look at some previous reasons for SOSR dismissals which were judged to be fair by an employment tribunal.
1. Client Relationship
One of the most common reasons for SOSR dismissal is that a client refuses to work with a particular employee. This is particularly relevant if you run a small business that relies on site visits. If a client specifies that they will no longer work with a specific member of staff, you may be faced with no other option than to dismiss the staff member.
2. Business Reputation
If continuing to employ a worker could put the reputation of your business at risk, you may have a justifiable reason to dismiss the employee under SOSR. This is most often the case with more senior members of staff, or those who publicly represent a business.
3. Refusal To Accept Altered Contract Terms
You may need to occasionally change terms and conditions of employment. However, if an employee refuses to accept the altered terms of the employment contract, you may be left with a challenging situation. Providing you have a sound business reason for the change in terms and conditions, one option is to dismiss the employee under SOSR and offer re-engagement under the new terms.
4. Employee Conflict
It’s never easy when your employees don’t get on, but when it begins to affect your business, you may find that you need to deal with the situation. If meditation between the two employees can’t solve the issues and there’s no way that they can both continue working in the business, SOSR dismissal may be appropriate.
5. Fixed Term Contract Expiry
Short term contracts are often used to cover long term sick leave or maternity leave. When the permanent employee returns to work, the temporary cover may be dismissed under SOSR. However, it’s important to note that the line between SOSR dismissal for the expiration of a fixed term contract and redundancy is very fine, so it’s a good idea to seek advice if you’re unsure.
If you need advice on SOSR dismissal, our team of HR and employment law specialists is ready to help. Contact us today for expert advice
What Doesn’t Fall Into SOSR Dismissal?
There are certain situations in which SOSR dismissal cannot be used. This includes those cases where dismissal for any reason would be seen as automatically unfair dismissal.
Automatically unfair dismissal is used to describe cases where the dismissal of an employee violates the worker’s statutory employment rights. In these cases, the dismissal is classed as automatically unfair, meaning that the employee would have a case in an employment tribunal.
There are over 60 different reasons why an employee could claim automatic unfair dismissal. These include:
- Being pregnant or on maternity or paternity leave
- Taking action over a health and safety issue
- Being a member of a trade union or taking part in official industrial action.
- Making a request for flexible working
- Whistleblowing
- Requesting or completing part in jury service
- Refusing to work over 48 hours
- Insisting on being paid the National Minimum Wage
- Being forced to retire
If an employee feels they may have been dismissed unfairly, they can appeal through the company’s appeal process. If this is unsuccessful, they can then make a claim to an employment tribunal for unfair dismissal.
When Is Dismissal Fair?
As we’ve already discussed, the Employment Rights Act 1996 sets out five reasons for dismissal which are potentially fair: capability, misconduct, redundancy, legal reasons and some other substantial reason (SOSR). Nevertheless, it’s important to note that simply specifying one of these reasons does not automatically mean that the dismissal is fair.
The process of deciding whether or not a dismissal is fair will also take into account the process that has been followed and whether the decision to dismiss the employee was a reasonable choice in the given circumstances.
When you’re considering SOSR dismissal, it’s critical that you ensure that the reason for dismissal is substantial. This means that the reason for dismissal should be having a significant impact on your business. Otherwise, you could be putting yourself at risk of carrying out an unfair dismissal, leaving you susceptible to legal action at an employment tribunal.
It’s also important to ensure that dismissal is the only available option. This means that you’ll need to have given warnings where appropriate or investigated other possibilities before resorting to dismissal.
Substantial Reason Dismissal Process
There’s no set process for SOSR dismissal. However, you should ensure that your company’s dismissal process is followed to reduce the risk of unfair dismissal claims later down the line.
The reason for the substantial reason dismissal may affect the process that you follow slightly. For example, if you’re dismissing an employee who has come to the end of a fixed term contract, there is no need to provide a warning or hold a disciplinary hearing. However, you should provide the employee with adequate notice and ensure that you communicate the decision effectively.
Here are a few tips to follow during the SOSR dismissal process to ensure that it is done fairly and reduce the chances of an unfair dismissal claim in the future:
- Fully investigate any evidence on which you are relying for the dismissal to ensure that it is as objective and robust as possible.
- Explore every possible option before deciding to dismiss the employee. Of course, this will depend entirely on the reason for dismissal, but may include giving the employee warnings or exploring how the working environment could be adapted.
- Consult with the employee about the potential dismissal and enable them to make representations regarding the decision before it is finalised. You’ll should ensure that any representations made by the employee are taken fully into consideration before a final decision is made.
- Ensure that the employee is aware that they have the opportunity to be accompanied by a trade union representative or a colleague to any meetings regarding the potential dismissal.
If you’re unsure of the substantial reason dismissal process, or whether you have a fair reason for dismissal, it’s always best to seek advice from a HR professional to avoid the risk of legal action being taken.
For expert advice on substantial reason dismissal, our team of HR and employment law professionals is here to help. Contact us today for expert advice.
Related Questions
Is It Legal To Dismiss An Employee?
It’s never an easy decision to dismiss an employee, but sometimes it is unavoidable. This is often the case where gross misconduct has taken place. It’s perfectly legal to dismiss an employee, providing the employer has a ‘fair reason’ and follows the correct procedure. Fair reasons can include misconduct, lack of capability, legal reasons, redundancy and some other substantial reason (SOSR).
Do You Get Paid If You Are Dismissed?
When an employee is dismissed, they are generally entitled to receive full pay for the duration of their notice period, whether or not they are required to work that notice. In many cases of dismissal, the employee is placed on garden leave, meaning that they are not required to work during their notice period. However, they should be paid for that notice period, as well as being paid for any untaken holidays and any bonus, commission or expenses to which they are entitled.
Who Has Authority To Dismiss An Employee?
The decision to dismiss an employee is never straightforward and requires a lot of careful consideration. The dismissal should also follow formal warnings and disciplinary hearings in most circumstances, so the employee has chance to make any representations required. A manager with adequate authority will be required to make the decision to dismiss an employee. They will then need to inform the employee of the reasons for the dismissal, whether they are required to work their notice period and their right to appeal the decision.
To Sum Up
The decision to dismiss an employee should always be a last resort. It is rarely an easy decision to make, but sometimes it is the only possible way forward.
If you decide to dismiss an employee, you’ll need to ensure that the reason for dismissal is fair. Whilst ‘some other substantial reason’ is a useful blanket reason for dismissal, you’ll need to ensure that there is a valid reason for dismissal which is having a substantial impact on your business.
Dismissing an employee without fair reason can quickly lead to a claim for unfair dismissal at an employment tribunal. For this reason, it’s important to take a cautious and measured approach when considering dismissal. If you’re unsure, it’s always best to seek professional advice in order to avoid a potentially expensive claim for unfair dismissal.
If you’re looking for expert advice on SOSR dismissal, our team of HR and employment law professionals is here to help. Contact us today for expert advice.
