It’s a situation that employers have found themselves in many times…They need to dismiss an employee but neither conduct nor performance are a problem and the business has a need for the type of work, meaning the role isn’t redundant either. So, it brings about the issue of how and whether at all the employment relationship can be brought to an end.
How many of the following all too common scenarios where employers look to dismiss their employees sound familiar?
- An employee is frequently and persistently absent from work for short periods;
- A fixed-term contract expires and isn’t to be renewed;
- There is a personality clash leading to an irretrievable breakdown in the working relationship;
- You have pressure from a client or customer to “get rid” of an employee or risk losing their valued business;
- You have lost trust and confidence in an employee to do their job;
- An employee refuses to go along with a business reorganisation you want to implement;
- An employee refuses to accept changes to their contract of employment
The final point is perhaps one of the most common workplace issues which causes a headache for businesses. It often results in the employer dismissing the employee and offering to re-employ on the new contract terms, known as the practice of “fire and re-hire”. ACAS have recently issued updated guidance on this topic which you can find here.
There are five potentially fair reasons for dismissal in the Employment Rights Act 1996 and the good news is that businesses are not left having to continue the employment simply because a more ‘typical’ reason for dismissal doesn’t apply, such as conduct, capability or redundancy. There is another potentially fair reason of Some Other Substantial Reason (SOSR). This is essentially a “catch all” reason for dismissal provided that it is substantial such as to justify the dismissal of an employee from their position.
While there is no specific guidance as to what amounts to SOSR, case law has established over the years that the above scenarios are capable of satisfying this reason. The key is that the reason must be substantial to the employer, that is to say not trivial or frivolous.
While SOSR offers employers flexibility to potentially fairly dismiss an employee, this should not be used as the label simply where one of the other statutory reasons doesn’t apply and there are often blurred lines between SOSR and the other reasons. As an example, an irretrievable relationship breakdown could include conduct issues while a refusal to go along with reorganisation may overlap with redundancy. Employers also need to be mindful of any potential discrimination angles, for example in relation to somebody who is persistently off sick.
If you would like further information on this matter please contact Nicola Clarke.