Tag Archives: SOSR

Dismissal for Some Other Substantial Reason: Demystified – Part Two

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In a recent blog post, I set out the reasons that an employer could dismiss an employee under the ‘dismissal for some other substantial reason’ (SOSR) clause. There, I went into detail about how to manage an awkward situation where a third party – usually an important client – states that they no longer want one of your employees on their site. Click here to read it again, or if you missed it.

In this month’s blog, I’m focusing on the problem of when employees refuse to work with colleagues.

Refusal to Work with Colleagues

In most walks of life, we’re free to choose our friends. But at work, we have little influence on who we work with. Often, there’s no issue – even when employees don’t like each other, they usually tolerate one another. But when a group of employees refuse to continue working with one of their colleagues, what can you do?

Reasons why employees might refuse to work with a colleague include:

  • Serious personality clashes
  • Discovering their colleague is HIV positive
  • An employee becoming ‘socially unacceptable’, e.g. by having objectionable behaviour, or criminal convictions or charges, e.g. child pornography or sexual offences

Initial Action

As soon as you’re informed of a situation, don’t delay! Act early to stop a minor problem escalating into a situation where dismissal is demanded. Investigate what is behind the breakdown in relationships by interviewing and taking statements from all the relevant parties. From that, try to persuade the employees to patch up their differences, taking whatever constructive measures necessary to alleviate the situation. Depending on the breakdown reason, measures may involve allaying concerns or fears, and even arranging an education programme, for example where the objections centre around an employee being HIV positive.

Try not to be easily swayed by employee pressure, particularly if the allegations are based on groundless prejudice, are unreasonable or are a complete overreaction. You may even have to consider disciplining the protesters if their actions amount to bullying or harassment of the employee in question. This may not feel like a palatable option as this could lead to even further disruption of the workforce, but you need to protect your business interests, and widespread disruption is bound to be a threat to profitability and customer relations.

Where employees’ objections are well founded, it may be appropriate for the employee with whom the problem has arisen to be disciplined if the issue is misconduct or offensive behaviour. The fact that you are tackling the issue may be sufficient to calm the situation down and appease your staff.

Employee Pressure to Dismiss

Dismissal from employee pressure should always be a last resort. If all the steps taken to alleviate the situation and improve work relations hasn’t worked, and the breakdown is clearly irreversible, then it may be possible to dismiss the employee on SOSR grounds.

Remember that the reason for dismissal must be substantial. So if disruption amongst the employees is seriously harming your business, then you have no choice but to dismiss. A tribunal will want to see evidence pointing to an ultimatum having been served on the employer by the employees. Often, employees will use the ‘It’s him or us’ pressure tactic, which should be sufficient if the relationship breakdown can be reasonably assessed as irremediable. However, this conclusion can only be reached after you have taken all reasonable steps, short of dismissal, to improve the situation.

If the relationship breakdown only affects two employees, it’s much more difficult to successfully plead SOSR as fair reason for dismissal as this situation is unlikely to be deemed ‘substantial’.

If all your attempts to improve relations are unsuccessful and the reason for dismissal is indeed substantial, an employment tribunal will explore whether the dismissal of the employee was reasonable in all circumstances. The tribunal will consider whether the objections of the workforce were reasonable, or whether they were motivated by malice or blind prejudice, making the dismissal an injustice to the employee. Unfairness to the employee is an essential part of the equation.

The tribunal will also explore your conduct and the procedure you went through to reach the decision to dismiss. Part of that procedure is considering whether the employee can be given alternative work, or be relocated to another workplace, with his or her agreement.

HIV

If your staff are pressurising to dismiss an employee who is HIV positive, usually because of fear of infection, you will need to take the necessary action to counteract what is unwarranted prejudice, and to protect the employee from bullying and harassment. Allay groundless fears by educating staff about the transmission of HIV and the fact that it imposes no risk to others from normal work or social contact. Remember that an HIV positive person is automatically deemed to have a disability under the Equality Act 2010. Therefore, you risk a disability discrimination claim and a claim for unfair dismissal if you dismiss an HIV-positive employee from staff pressure. As HIV disproportionately affects gay and bisexual men, you also risk a sexual orientation discrimination claim. It’s essential that you protect the employee from harassment by colleagues, which may involve taking disciplinary action against the employee’s colleagues.

If efforts to consult with staff to allay their fears fail, it may be appropriate to transfer the employee to alternative employment, with his or her agreement, rather than considering dismissal.

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Dismissal for Some Other Substantial Reason: Demystified – Part One

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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:

• Capability
• Conduct
• Redundancy
• 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.