Unfair dismissal for Some Other Substantial Reason (SOSR)
Definition of ‘Some other substantial reason’ (SOSR)
For a dismissal to be fair, an employer needs to have a potentially fair reason to dismiss – such as misconduct, redundancy or ‘some other substantial reason’ (SOSR) - and the decision to dismiss must be within the range of reasonable responses. In cases where an employer’s reputation may be at risk, conduct and SOSR can overlap.
A teacher was charged with possessing indecent images of children, but he denied being responsible for them. He was suspended from work pending investigation. The Procurator Fiscal (the Scottish equivalent of the CPS) decided not to prosecute.
Dismissal for risk of reputational damage
The police evidence provided to the employer was redacted beyond use, so it wasn’t given to the disciplining officer. The employer concluded that there wasn’t enough evidence to show the employee was responsible for downloading the images. However, he was dismissed for misconduct and the potential risk he posed to children.
The dismissal letter also cited the risk of reputational damage which hadn’t been part of the hearing.
Unfair dismissal claims for SOSR
The employee claimed unfair dismissal. He lost at the employment tribunal, but the Employment Appeal Tribunal overturned that decision. The EAT said that dismissing for reputational damage wasn’t fair because the employee had not been given an opportunity to address those allegations at the disciplinary hearing.
They also said that the decision to dismiss on conduct grounds was flawed: an employer must be satisfied on the balance of probabilities that the employee committed the offence in question. The disciplining officer had said there wasn’t enough evidence to make out misconduct, so the decision to dismiss on conduct grounds was not reasonable.
Proving some other substantial reason (SOSR)
The EAT went on to look at whether the employee could have been fairly dismissed for SOSR if the employer had pursued reputational damage as the reason for dismissal. They referred to a previous case called Leach v Ofcom, where a reputational damage dismissal had been fair. The EAT said this case was very different from Leach.
Leach v OFCOM – reputational damage to employers
In Leach, there was detailed information from the police to support the allegations, which there wasn’t in this case. The employer in Leach investigated the police evidence rather than simply accepting it – there wasn’t that opportunity in this case as there was no comparable police evidence. In Leach there was existing press interest in the case, and a real risk of adverse press coverage, which wasn’t present here.
The importance of an evidence base for dismissals
It’s hard to believe that it could ever be unfair to dismiss a teacher when indecent images of children are found on devices in their home. But this case shows the importance of an evidence base for these decisions, both in relation to misconduct and any risk of reputational damage.
Employees must also be given an opportunity to deal with all relevant issues at the disciplinary hearing for a dismissal to be fair.
SOSR: A specialist employment & HR solicitor’s view
This case serves as a warning to employers on two fronts. Firstly, it is vital to ensure that any allegation that may be relied on in deciding to dismiss is included in the invite letter to the disciplinary hearing. In this case the employer failed to warn the employee that they may be dismissed due to the damaged caused to the employer’s reputation and then went on to use this as a reason for dismissal. This was held by the EAT to be unfair.
The second point from the case is to always consider arguing ‘some other substantial reason’ as an alternative reason for dismissal. Even though the EAT decided in this case that it would not have saved the employer, the fact they considered it demonstrated it was a reasonable argument for the employer to run.
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