The whole dismissal process can be a minefield for employers, so it’s important to understand the differences. I wrote about those differences in a recent newsletter, but the term ‘dismissal for some other substantial reason’ (SOSR) needs further clarification.
There is a danger that some employers use SOSR as a convenient way to get rid of unwanted employees. But there really must be a good, reasonable and substantial reason for doing so. You must demonstrate that you followed a fair procedure, because if you didn’t, an employee can successfully claim unfair dismissal.
Under Section 98 of the Employment Rights Act 1996, the potentially fair reasons for dismissal are:
• Contravention of a statutory duty or restriction
• Or, if none of these apply, ‘some other substantial reason (SOSR) of a kind such as to justify the dismissal of an employee holding a position which the employee held’
Examples of dismissals that could be held for SOSR include:
• Non-renewal of the fixed-term contract of an employee recruited as maternity leave cover
• The dismissal and re-engagement of an employee to impose new contractual terms and conditions that the employee has refused to agree
• A dismissal because of a personality clash between employees that makes it impossible for them to work together
• Dismissal of an employee where there are concerns relating to the safeguarding of children or vulnerable adults, but where the employer does not have grounds for a misconduct dismissal
Client Refuses to Have an Individual on Site
Another valid reason for using SOSR is when a client reports that they no longer want one of your staff members back on their site. Naturally, you need to protect your commercial interests and maintain a good business relationship with the client, but you must also balance the employment rights of the employee.
If you were to dismiss the employee without taking any steps to find a solution, or take account of any injustice towards the employee, you run a high risk of a successful unfair dismissal claim against you. But if you have acted reasonably and investigated fully before deciding to dismiss, SOSR can safely be used as a fair reason for dismissal.
What’s the Problem?
Firstly, investigate why the client has objected to the employee to see if the problem could be resolved. If the reason is evidently misconduct at the client’s workplace, then it needs to be dealt with accordingly using your disciplinary procedure. Where the reason is less clear, such as the client disapproving of a particular working practice, the employee could be asked to change their process to match the client’s needs.
When the situation is serious, a tribunal will need to be satisfied that you have taken the appropriate steps to find any scope for resolution. Ensure you have a written record of discussions with the client when trying to resolve the problem; ask them to provide their objections in writing. If you cannot establish the truth of the client’s allegations, or do not agree with their actions, the commercial pressure on you both may still provide sufficient grounds for a fair dismissal on SOSR grounds.
What About the Employee?
If your client is adamant that there can be no satisfactory resolution, and that the employee should not return, it’s important to consider what injustice might be caused to the employee when deciding whether to dismiss. For instance, how long have they worked for you? How satisfactory has that service been? What are their prospects on the labour market? Case law has shown that none of these factors is conclusive, but should all be considered prior to dismissal.
What other alternatives are there rather than dismissal? Could you offer redeployment within your organisation? If it’s large enough, there may be a different type of job that your employee could do.
The Employee’s Contract
Your case will be strengthened if the employee has been warned that the client may intervene to have him or her removed. These days, many commercial contracts include a clause stating that the client may ask the employer to remove any employee whom the client considers unsuitable. It would help to include this in the employee’s contract of employment, as it shows reasonableness when acting on third-party pressure. Your employees should also be informed of the importance of maintaining good working relations with clients during their induction. The induction is also an ideal time to reiterate the client’s right to insist on the removal of employees.
In Part Two of Dismissal for Some Other Substantial Reason: Demystified, I’ll cover the difficult subject of refusal to work with other colleagues. Look out for that one coming soon.
Meanwhile, if you need any further advice on dismissal or any other staff issues, do call me on 0118 940 3032 or click here to email me.