As set out in the Employment Rights Act 1996, there are five potentially fair reasons for dismissal. These are:
- Conduct
- Capability (i.e. performance or ill-health)
- Redundancy
- Breach of a statutory restriction or duty
- Some other substantial reason (SOSR)
What is SOSR and when does this apply?
The dismissal of an employee may be fair if the employer can show that it was for one of the first four reasons listed above or it was for some other substantial reason of a kind as to justify dismissal.
This fifth potentially fair reason is therefore essentially a “catch-all” for a dismissal falling outside of the scope of the first four reasons.
There is no further statutory definition of SOSR or any guidance on this however, case law tells us that the reason must be ”substantial” and therefore serious enough to warrant dismissal, rather than something insignificant or frivolous. It is also important that the employer can show that the decision to dismiss for SOSR was reasonable in all the circumstances and that that reason was sufficient to justify dismissal (rather than any lesser sanction).
An employer who has a potentially fair SOSR reason but fails to follow a fair process remains exposed to an unfair dismissal claim, as this can call into question the reasonableness of the employer’s decision to dismiss. Employers therefore should be following a full process prior to dismissal, including by carrying out an investigation, meeting with the employee to discuss the issues, explaining that the meeting could result in dismissal and looking for alternatives to dismissal, such as working in different areas/alternative roles. The process for a SOSR dismissal will therefore be very similar to the process that should be followed for other dismissals, such as conduct dismissals.
Examples of SOSR Dismissals
Whilst SOSR dismissals can arise from almost any reason that falls outside of the other four potential fair reasons for dismissal, some of the most common examples of SOSR dismissals are:
- Irreparable breakdown in trust and confidence between employee and employer
- Pressure from third parties (such as customers or suppliers of the employer)
- Expiry of a fixed term contract
- An employee no longer having the necessary qualifications/licences to carry out their role (for example, losing their driving licence in a driving role, or operating licence for other vehicles).
Each case is fact specific and therefore care should be taken before dismissing someone for an SOSR reason, as the reason could fall within one of the other four potentially fair reasons for dismissal.
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