What does dismissal for some other substantial reason mean?

As an employer, there will no doubt come a time when you need to dismiss an employee.  Under Section 98 of the Employment Rights Act, there are five potentially fair reasons to dismiss an employee, which are capability, conduct, redundancy, breach of statutory restriction and some other substantial reason.  Our Employment Law team discuss here how and when an employer can dismiss for some other substantial reason and whether you need to follow a fair procedure.

Some other substantial reason (SOSR) is a broad term an employer may use to apply to a dismissal that does not neatly fit into one of the other justifications. There is no statutory definition of “substantial” but relevant authorities have confirmed that the reason must not be frivolous or insignificant. This is subjective and will depend on the circumstances of each case.

Test for some other substantial reason dismissal

At tribunal, the test for determining whether an employee was fairly dismissed for SOSR is two part.

First, you will need to establish that the SOSR was the reason or at least the principle reason for the dismissal. Once this is established, the tribunal will proceed to the second part of the test: reasonableness. At this stage, the burden of proof is neutral, but the tribunal will look at all the relevant circumstances, including the size and administrative resources of your organisation, to decide whether dismissal fell within the “range of reasonable responses” that were open to you.

Do I need to follow a fair procedure when dismissing for SOSR?

A tribunal may find that you fairly dismissed an employee for SOSR, even if you do not follow a fair procedure. One recent case where the Employment Tribunal found that a fair procedure was not necessary is the case of Gallacher v Abellio. In this case, the tribunal found that the relationship between the employee and her supervisor had completely broken down, and that following a procedure would not serve any purpose as the employee had no desire to remain with the company. The Employment Appeal Tribunal found that dismissing the employee without following a fair procedure did, in this case, fall into the band of reasonable responses.

However, Gallacher was an exceptional case and does not mean that you can do away with following a fair procedure in every SOSR dismissal. Procedural fairness is important because it goes to the reasonableness of your decision. Even if you do not follow your organisation’s full disciplinary process you should still consider implementing other procedural safeguards such as considering alternatives to dismissal, and consulting the affected employee.

Examples of some other substantial reason dismissals

While a comprehensive list of valid SOSRs is not available, case law has provided some examples where the courts have found that an employee was fairly dismissed for SOSR. These include:

• Third party pressure;
• The employee refuses to accept new terms of employment;
• Personality clash between two or more employees;
• Conflict of interest;
• Expiry of a fixed term contract;
• Reputational risk; and
• Business reorganisation that doesn’t fall under the statutory definition of redundancy.

You should remember that even if you dismiss an employee for one of the above reasons, a tribunal will still look at all the surrounding circumstances to see if you acted reasonably in dismissing the employee.

Dismissing an employee can be a very stressful process for employers and it is always prudent to seek appropriate legal advice if you are unsure of the procedure you need to follow. If you have questions about dismissal for some other substantial reason or about dismissals in general you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

To receive regular Employment Law updates from the team regarding recent tribunal cases and legislation updates, you can subscribe to our weekly Employment Law Newsletter by completing our subscription form or emailing us at events@warnergoodman.co.uk. 

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.