When is it safe to rely on SOSR as a reason for dismissal?

Thu, 27 Dec 2012

By Richard Hignett
When is it safe to rely on SOSR as a reason for dismissal? Is it safe to rely on SOSR when dismissing an employee who you have lost trust and confidence in?
 
Richard Hignett considers the use of ‘Some Other Substantial Reason' in dismissal cases
 
Dismissal for ‘Some Other Substantial Reason’ is widely seen as an important residual category of reason for dismissal. Provided the reason is not whimsical or capricious it is capable of being substantial and, if, on the face of it, the reason could justify dismissal then it will pass as a substantial reason (Kent County Council v Gilham [1985] IRLR 18, CA). 
 
Over the years the SOSR label has been held to apply to a range of diverse situations including, for example, to dismissals arising out of re-organisations which fall short of constituting a redundancy, dismissals at the behest of third parties and to situations where an employer takes action to protect its legitimate business interests. 
 
Practitioners regard SOSR as a particularly useful category where senior employees are concerned whose leadership failings do not fall neatly into either the ‘conduct’ or ‘capability’ boxes. Case law shows it to be a useful category for dealing with particularly troublesome employees who are unable to get along with their colleagues, see for example Perkin v St George's Healthcare NHS Trust [2005] EWCA Civ 1174, [2005] IRLR 934 (the case of the finance director with the inflammatory management style) or Ezsias v North Glamorgan NHS Trust [2011] IRLR 550 (the consultant unable to refrain from making complaints about his colleagues). 
 
It is not possible from the statistics supplied by the Tribunal Service to say whether the SOSR reason is on the rise in terms of employers’ reliance on it. However, a growing unease can be detected in the case law about over reliance on the SOSR label, particularly in relation to ‘trust and confidence’ dismissals. For example, the former president of the EAT, Mr Justice Underhill disapproved of the use of SOSR as a device to avoid the need to prove incidents of misconduct in A v B [2010] ICR 849, EAT). In McFarlane v Relate Avon Ltd [2010] ICR 507, EAT he counselled employers that it was not a ‘solvent of obligations’. In Ezsias Mr Justice Keith said: 
 
“We have no reason to think that employment tribunals will not be on the lookout, in cases of this kind, to see whether an employer is using the rubric of “some other substantial reason” as a pretext to conceal the real reason for the employee's dismissal.'' 
 
Trust and confidence lies at the heart of the employment relationship. The courts see no difficulty with employees citing a breach of the implied term of trust and confidence to ground complaints of constructive dismissal but it would appear from passages in some of the more recent SOSR cases, that the courts are less confident about employers relying on a breach of this term by the employee as a reason for dismissal under the SOSR banner. It is understandable that the courts should wish to guard against employers seeking to justify by another route what are in reality conduct or capability dismissals. It is also right that the courts should be seen to discourage the use of generally convenient labels to describe a set of reasons for dismissing an individual. However, there clearly are situations, particularly involving senior employees who are not guilty of any particular misconduct and it cannot easily be said they lack the ‘capability’ to carry out their role where the employer has, usually for a miscellany of reasons, lost trust and confidence in the individual carrying out the role. In such cases employers can still safely rely on SOSR.
 

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