SOME OTHER SUBSTANTIAL REASON FOR DISMISSAL
Is it time to start relying on Some Other Substantial Reason for dismissal?
SOSR is renowned for being an exceptionally high bar for a fair dismissal. Most SOSR dismissals are complex, long-winded, and rarely tested in Tribunal.
However, last year's Employment Appeal Tribunal (EAT) decision in the case of Guy Matthews v CGI IT UK Limited offers significant employer-friendly insights for those considering dismissal for "some other substantial reason" – even finding that an SOSR dismissal was fair despite the fact that no process was followed.
“This case is a good authority to allow employers to be bolder in addressing irreconcilable differences within the workplace. We recommend checking in for a strategic and thoughtful approach when looking at SOSR dismissals to avoid the potential legal pitfalls.”
This was a case where the employee had rejected various attempts by the employer to keep him gainfully employed within the business, appeared to believe a conspiracy theory about what was found to be a genuine redundancy exercise, and was adamant that his manager was at fault and needed to be reprimanded.
So what are the key factors when it comes to relying on SOSR fairly?
Focus on the relationships: The key identifier of a SOSR dismissal is where an individual has an impact on workplace relationships. Perhaps its not a particular act or behaviour, but the creation of an atmosphere and a difficult working environment. SOSR is the catch all – it is to be used where other reasons like conduct, capability or redundancy don’t strictly apply. Where an employer has genuine conduct, performance or redundancy concerns, these must be managed through the appropriate processes instead.
Take reasonable steps to resolve: Employers must demonstrate that they have taken reasonable steps to resolve the issues before resorting to dismissal. A strong defence would be where the employer can evidence the efforts taken – such as offering alternative roles, redeployment, coaching and mediation. Employees who refuse to engage are much more likely to be dismissed fairly.
ACAS: There is no ACAS guidance on a fair SOSR dismissal process, and attempts to comply with the ACAS Code would suggest that the dismissal might actually be conduct or capability related. Best practice is to ensure that the employee has an opportunity to comment on the issues before a decision is reached, but try to avoid the other ACAS “bells and whistles” when it comes to process.
Futility: The tribunal acknowledged that in some cases, following a dismissal procedure might be futile. If it can be shown that a hearing or further steps (such as issuing a warning) would not resolve the issue (or even make it worse), failing to follow a process can still result in a fair dismissal – but this will only apply in fairly extreme cases.
Beware of relying on the employer’s loss of trust and confidence alone: This concept arose in constructive unfair dismissal law as a concept to support employees. Tribunals are cautious about recognising this concept in the employer’s favour, and using breach of trust and confidence as a side-step from a misconduct issue will usually signpost an unfair dismissal. Where an employer is at fault for a breakdown in the relationship it will be expected to have taken steps to rectify this.
This case is a good authority to allow employers to be bolder in addressing irreconcilable differences within the workplace. We recommend checking in for a strategic and thoughtful approach when looking at SOSR dismissals to avoid the potential legal pitfalls.
If you would like to talk to anyone about tricky dismissals, please do contact one of the team.
