Dismissing for Some Other Substantial Reason (SOSR)
Is it more difficult to justify than other dismissals? David Clay explains the position.
If an employer wishes to avoid an unfair dismissal claim they must establish that the dismissal is justified by one of five potentially fair reasons. Employers are normally very familiar with dismissals on grounds of misconduct, capability or redundancy, but dismissals can also be justified for Some Other Substantial Reason (SOSR). This is a very important residual category that can allow dismissal for personality clashes, relationships at work, business reorganisations and changes to employee terms.
Employers are often reluctant to dismiss for SOSR on the basis that they fear the threshold for justifying a fair dismissal is too high. However, a recent Employment Appeal Tribunal (EAT) decision considered the threshold and gives some reassurance to employers.
Mrs Ssekisonge came to the UK to work and was employed by an NHS Trust as a nurse in 2011. She failed to disclose that she had been involved in a dispute with the Home Office for some time regarding her identity and permission to work in the UK. In April 2014, the Trust was informed by the Disclosure and Barring Service (DBS) that her DBS certificate had been revoked.
As the DBS certificate is a requirement to work as a nurse, the Trust suspended Mrs Ssekisonge and she was subsequently dismissed for SOSR due to the concerns over her identity. Mrs Ssekisonge brought a claim for unfair dismissal, which was unsuccessful at tribunal.
She appealed the decision claimed, amongst other things, that when an employer dismisses for SOSR the tribunal has to take a more careful evaluation of the facts and balance the harm of the dismissal to the employee against the damage to the employer of ongoing employment.
The EAT rejected Mrs Ssekisonge’s appeal and found that the Trust’s decision to dismiss her fell within the range of reasonable responses and could be deemed fair. The Trust were not subject to any higher threshold of fairness due to dismissing for SOSR.
The case is a useful demonstration to employers that the test on whether a dismissal on grounds of SOSR is fair is ultimately no different to any other reason. However, the variety of different dismissals that can fall within the SOSR category means that each dismissal may need to be handled in a different manner to ensure that the decision to dismiss falls within the range of reasonable responses. The process followed in this case, for example, would not be appropriate for enforcing changes to an employment contract, despite the fact that both dismissals would ultimately be by reason of SOSR.