What is ‘SOSR’ dismissal and when should it be used?
Dismissal procedures can be hard to grasp, particularly when the issue in question isn’t clear-cut. Eleanor Deem explains SOSR and the circumstances in which an employer might apply it.
Under the Employment Rights Act 1996, there are five potentially fair reasons for dismissal. Dismissing someone for one of these reasons doesn’t necessarily mean the dismissal will be legally fair though, as process and whether the decision was reasonable in the circumstances are also relevant.
The potentially fair reasons include capability (if the person doesn’t have the skills, ability or qualifications needed), misconduct, redundancy and if continuing employment would be in contravention of a statutory duty or restriction. In addition to these reasons, we also have Some Other Substantial Reason, or SOSR.
What does SOSR mean?
SOSR is basically a catch-all, acknowledging that there may occasionally be reasons why it is justifiable and necessary to dismiss an employee in circumstances which don’t fit neatly under one of the other potentially fair categories.When does SOSR apply?
The guidance is not specific, simply because each circumstance is different, and it isn’t possible to develop a comprehensive list of SOSR reasons. However, the kinds of reasons which have been found to justify SOSR dismissals include:
1. Client pressure
This situation is probably the most common SOSR reason in a small business – if you have an employee working closely with, or on-site at, a client, and that client indicates that they no longer accept working with that member of staff.
2. Changes to terms and conditions
If you have good business reasons to change terms and conditions employment and you have staff who refuse to accept them, a SOSR dismissal followed by reengagement on the new terms may be an option.
3. Risk to reputation of the business
SOSR may apply if you feel continuing to employ the worker places the reputation of your business at unacceptable risk. This is more likely to be relevant if they are very senior or their role largely involves publicly representing the business.
4. Breakdown in trust and confidence
If something has happened that has fundamentally undermined the trust and confidence you have in a member of staff, SOSR may apply, although the type of event which leads to this often sits more naturally under misconduct instead.
5. Employee relationships breakdown
If you have two employees between whose relationship has irretrievably broken down, and this makes continuing to employ them both impossible, SOSR might be fair.
6. Short-term contracts
If someone is with you on a short-term basis to cover for a permanent employee, perhaps on family leave or long-term sick leave, and the permanent staff member comes back to work, the dismissal of the temporary cover will probably be for SOSR. Similarly, the end of a fixed-term contract might be SOSR, although it can also be redundancy, depending on the circumstances.
Determining whether the reason is fair
If you are considering dismissing someone for SOSR, you should make sure the reason is objectively substantial – it must be a fairly big deal, and must be having a significant impact on the organisation.
It also must be a situation where dismissal is the only viable route, and another warning or sanction isn’t possible.
Process to be used
An SOSR dismissal doesn’t necessarily have to use the same process as a dismissal for misconduct or capability or similar, with hearings, warning levels or similar. However, to avoid an unfair dismissal claim you should do the following:
- Ensure any evidence you are relying on is as robust and objective as possible
- Ensure you explore any other options thoroughly before proceeding to dismissal
- Ensure the staff member is consulted and given full opportunity to make any representations about the decision before it is finally made, and that those representations are fully considered and taken into account
- Give the staff member the opportunity to be accompanied at meetings which may lead to their dismissal by a colleague or trade union representative.
SOSR can be a very useful catch-all in circumstances where continuing to employ someone just isn’t possible, and this is particularly true in small businesses, where redeployment or similar alternative actions aren’t available as they would commonly be in a bigger organisation.
However as with any dismissal, caution should be exercised and you should take professional advice before proceeding.
Explore related resources
These areas of the People Skills Hub will help you to address some of the issues covered in this blog:
- Dismissal: Guidance on the best way to manage a dismissal, with information on avoiding unfair dismissal, wrongful dismissal and constructive dismissal
- Absence: Understand how to manage absence (both planned and unplanned) and how to support your staff on their return to work
- Contracts and employment status: Find out what you need to know about employment contracts