SOSR Dismissals: When is it Fair to Use Them?

In order to dismiss an employee lawfully, you need to be able to provide a fair reason for the dismissal. Section 98 of the Employment Rights Act 1996, states five potentially fair reasons an employer can dismiss an employee. These potentially fair reasons are employee conduct, a breach of statutory restriction, redundancy, employee capability and performance, and 'some other substantial reason' (SOSR).

Get professional advice on SOSR dismissals from Croner’s expert team of HR specialists. Call today on 0800 470 2862.

What is a SOSR dismissal?

Dismissing an employee for 'some other substantial reason' is an all-encompassing terminology, essentially designed as a catch all with the intention of allowing employers to terminate an employee's employment contract, when none of the other four fair reasons for dismissal apply.

The term 'substantial' has no helpful statutory definition, at least not in this context. However, to dismiss a member of your workforce for 'some other substantial reason', the reasoning behind the decision should not be frivolous or insignificant.

When is a SOSR dismissal fair?

A SOSR dismissal could potentially be deemed fair in situations such as the following:

A conflict of interests:

This can arise when the aims of two different parties, in this case your business and an employee, are in conflict. A good example of this is when employees have an outside interest in a competing business or where there is a relationship or close connection to persons who work for a competitor.

A clash of personalities:

Whilst this may be fair reason for dismissal a clash of personalities must verge on the extreme side of the spectrum for this to hold any weight. For instance, if the issue is business critical and only as a last resort option.

Expiry of fixed-term contract

Dismissing an employee using SOSR for the end of a fixed term contract may be deemed fair reason. However, it's worth seeking advice beforehand as there is a fine line between the expiration of a fixed term contract and redundancy.

The return of an employee whose role was being covered

If you have an employee who is taking family leave like maternity, and you have hired another to replace them temporarily, you can dismiss the replacement citing ‘some other substantial reason’ and this would likely be deemed a fair reason for dismissal.

From the offset of the employment you should ensure that the replacement employee understands that the employee that they were hired to replace will be returning to the role. Ensure that this is clearly reflected in the contract.

Third party pressure to dismiss an employee

This can be the case where a client or customer refuses to work with your business unless the employee is dismissed. This is mostly commonplace when the employee works on the client's premises, i.e. a cleaner contracted to clean the client's office building etc. In the event that the client no longer wishes to have the employee onsite and there is no other way there is no alternative role, then SOSR may be deemed a fair reason for dismissal.

Employee refusal to accept new terms and conditions of employment

Instances where you want to update an employee's terms and conditions of employment and the employee refuses, the only option you may have is to give the employee notice and re-engage them on new terms. 

For this to be deemed a fair reason for dismissal, you must be able to substantiate that the reason for the changes in the terms and conditions was being implemented for 'sound business reasons'. Employers must also follow the ACAS statutory code of practice and re-engagement.

A reputational risk to the employer’s business:

In cases of reputational risk, the employer may justify dismissal of an employee on the basis that continuing to employ them would damage the reputation of your business or the business itself.

This situation is particularly fact sensitive. However, in some industries, for instance, those that require a high level of safeguarding and confidentiality, if an employee's conduct goes against the level of professionalism and trust expected from their position then, this may be viewed as a potentially fair reason.

An example of this is when an employee gets caught up with the criminal justice system outside of work.

What should I do if my employee falls foul of the law?

Finding out an employee has been involved in criminal activity can be a very difficult line to tread. There is still procedure to follow, and you should make sure you take into account all the circumstances as there could be ramifications if you get this incorrect, such as unfair dismissal claims and the potential of being taken to an employment tribunal.

Employees being investigated by the police

A potential scenario could be that the police show up to your business premises to make an arrest. Under these circumstances, it’s vital that employers remain calm and professional as well as respecting the rights of the involved parties. 

Create an open dialogue with the police and also ensure you discuss the incident with your employee to ascertain an explanation for their arrest. Be sure however, not to jeopardise the criminal investigative process.

Depending on the allegations being brought against your employee, it might be necessary to suspend the employee, pending the outcome of the investigation. This would be particularly relevant if the allegations would impact the employee’s ability to do their job.

At this point seeking the advice of an employment law specialist would be advisable, as adherence to policies and contracts. As an employer, concern will automatically go to the impact on your business, reputation, existing staff morale etc. However as long as you conform to GDPR guidelines, you can deal with any employee concerns.

If you need immediate support, get in touch with Croner on 0800 470 2862.

Employee's receiving convictions and SOSR dismissal

As an employer, you cannot simply dismiss an employee because of a conviction. You must consider the nature of the offence and whether this will impact the employee’s ability to do their job. Similarly take into account the type of role the employee performs as well as their track record.

In some scenarios it might be justifiable to dismiss an employee, for instance a financial advisor gets convicted of money laundering. Similarly, if the employee ends up incarcerated then a dismissal for 'some other substantial reason' may be deemed fair, as the employee would not be able to conduct their duties from prison.

Job role and professional reputation aside. You may also have to consider your clients and other employees, particularly in the event that an employee is found guilty of a violent offence. Such a conviction might raise a safety concern.

In the event you are concerned that an employee conviction could cause a fallout that would damage the reputation of your company, there can only be cause for fair dismissal if there is evidence of reputational damage and you follow a fair procedure.

An employee's past criminality is revealed

In cases where an employee's criminal past is brought forward, employers might face pressure from other employees to dismiss the employee in question. However, there might be a case for unfair dismissal if you do not address the situation correctly.

How you deal with this situation will depend on whether the conviction is spent or unspent.

Spent convictions are ones which no longer need to be disclosed to employers, unless it’s for a specific role like a teacher. So employers shouldn’t ask about spent convictions unless it is for certain exempt roles. For unspent convictions, job applicants don’t have to tell employers about them unless an employer asks the applicant to tell them.

If there is a deliberate attempt to conceal a criminal conviction, then this could be treated as a case of serious misconduct and dismissal may be the outcome. This would apply only to unspent convictions. It is common for employers to ask about unspent convictions during the application process and any failure to disclose it when asked could lead to dismissal once fair procedure has been followed. For spent convictions, it is automatically unfair to dismiss someone because of a spent conviction once they have two years’ service.

If there has not been any attempt at deliberately concealing an unspent criminal conviction, then SOSR could be used as a fair reason for dismissal provided it can be proven there is a reputational risk to the company, or it directly affects the role that the employee was undertaking. If the conviction is spent, because of the rehabilitation of offenders law, it is unlawful to refuse someone work because of a spent conviction. Once they are employed, it is automatically unfair to dismiss someone as a result of a spent conviction but this protection only applies once the employee has 2 years’ service.

What is not covered by SOSR?

There are several situations where using SOSR as a reason for dismissal could land you in hot water, as an employer. This includes any situation of automatically unfair dismissal, which is where the employees statutory employment rights have been breached and could lead to an employment tribunal.

These are numerous, however some common reasons that an employee could make a claim of automatic unfair dismissal are if they are dismissed because of any of the following:

• Becoming pregnant or whilst on parental leave
• Raising awareness or taking direct action over a health and safety issue
• Being a member of a trade union or being involved in industrial action
• Making a request to work flexibly (Flexible Working Requests)
• Whistleblowing
• Being involved in jury service
• Refusing to work over 48 hours in a single week (Maximum Working Times) 
• Demanding to be paid the national minimum wage
• Being forced to retire (Forced Retirement)

What is the SOSR dismissal procedure?

Because SOSR is quite broad and is used in a multitude of circumstances, the reasoning you have chosen to dismiss an employee under 'some other substantial reason', will have an impact on the process that you follow. 

For instance, in the event of a fixed term of employment contract coming to an end there is no need to issue a warning or hold a disciplinary hearing, although you should hold a meeting with the employee to discuss the situation with them first. You should provide the employee with notice that they will be being terminated and this should be communicated clearly. Be sure to follow procedure as otherwise you could open yourself up to be vulnerable to a claim of unfair dismissal.

The dismissal process needs to be considered carefully as there is plenty of room for error, which could be costly as an employer. Warnings and in cases such as misconduct and these can serve as a chance for the employee to state their defence. However, in the case of SOSR warnings wouldn’t usually feature, insead you should have a meeting with the employee to discuss the situation. If the decision after this process is to dismiss the employee, then this should be done by a manager with adequate authority.

Besides delivering the dismissal verdict to the employee, the reasons for the decision should also be addressed and stated to the employee. As well as this they should also be notified of any notice that they need to work as well as their right to appeal the decision.

Tips to follow when considering a SOSR dismissal

In order to minimise the potential for a claim of unfair dismissal under SOSR, you should try and follow the proceeding steps to ensure a fair process.

• Investigate the evidence that you are basing your decision on thoroughly.
• Explore every option before moving to dismiss the employee. This could depend on reasoning but could include and adjusting their working environment.
• Consult with the employee in question about the potential for dismissal and allow them to make representations on the decision, before it is finalised. These representations should be taken into consideration before issuing a final decision.
• Alert the employee to their right to be accompanied by a colleague or a trade union representative.
• If you are unsure of the SOSR process, then consult with an employment law specialist before proceeding to reduce the risk of legal action being taken against your business.

Get expert support on SOSR 

Talk to Croner today and get expert advice on SOSR and due process when it comes to dismissals. With over 80 years of experience in everything from Health and Safety to Employment Law and HR, our expert advisors can help support your business, whatever your needs. Call one of our experts on 0800 470 2862.

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