Lawyers love a catch-all clause.
Whilst employers will be relatively familiar with the more standard forms of dismissal on the basis of misconduct, capability and redundancy, occasionally an employer will face a situation which does not fall squarely within these more-familiar settings. However fear not. The law provides for a “catch all” type of dismissal on the basis of “some other substantial reason”. This type of dismissal is often referred to as SOSR and covers the type of situation which is infrequently seen by employers.
Despite the fact that this wording appears to be “Limitless”, in reality an employer will often struggle to use this catch-all clause correctly. It is traditionally a very difficult reason to succeed with in an employment tribunal. Because it provides such a grey area, it can cost employers significant sums defending their reasons.
Here however are 5 examples of working relationships you may recognise which highlight when SOSR may be appropriate.
1. Prison Break – Michael Scofield – being sent to prison
The first example is fairly obvious although hopefully infrequent for employers. If you think way back to the beginning of Prison Break where structural engineer Michael Scofield walks into a bank, armed with a gun, framing himself for a crime that would send him to prison. Clearly while he is in prison, Scofield could not work and his employer could be entitled to dismiss him. In theory this could amount to a conduct issue, but bearing in mind that this happened outwith the workplace, and if there is no mention of such situations in any disciplinary policy, the employer will likely have to dismiss under the ground of SOSR.
When faced with this situation, do not assume the employee’s employment automatically comes to an end. Various considerations should be made and if you intend to dismiss in this situation, you would be wise to seek legal advice first.
2. Billions – Bobby Axlerod/Wendy Roades/Chuck Roades – conflict of interest
If you haven’t been watching Damian Lewis in Billions before now, then I would definitely recommend it. The programme focuses on the high life, the fame, the money, the glamour, the ruthlessness and the conflicts, the programme entertains with a number of different dynamics. One such dynamic, without giving any spoilers away, is the fact that the billionaire business owner’s most trusted adviser is married to the US Attorney investigating the legality of his business’s conduct. Although Bobby Axlerod does not wish to dismiss his most trusted adviser in the show, he probably could under the grounds of SOSR and the fear that she would be feeding information to her husband.
3. Suits – Harvey Specter/Donna Paulsen – dismissal to avoid having an affair with an employee
Those that watch Suits will be aware that there is a constant sexual tension between Harvey and Donna, and to be fair to Harvey, who can blame him. Surely it’s a matter of time before they both cave and commit to each other? There was a case in America a few years ago where a dentist dismissed his assistant on the basis that if she remained an employee, the temptation to have an affair with her would be too great. The dentist wanted to protect his family and this was found to be a fair dismissal. Although American law is different to UK law, it would be interesting to see how a similar situation would be determined by an Employment Judge. Such a dismissal would definitely come under the bracket of SOSR.
Again this highlights the rare kind of situation where an employer may want to utilise an SOSR dismissal. Rather than taking Harvey and Mike on at their own game, you should seek clarification from your own legal advisers.
4. Mad Men – Don Draper/Salvatore Romano – Third party pressure
Do you remember when Don Draper fired Salvatore Romano by request of a major client who threatened to take his business elsewhere unless he was dismissed? This happened after Sal had made advances on the closeted art director the night before. Well this kind of situation has led to fair dismissals under SOSR in the UK. When such a request does come in, an employer must show that they have considered if it is reasonable to dismiss in the circumstances and that such a dismissal would not result in a disproportionate injustice to the employee.
5. Breaking Bad – Walter White/Jesse Pinkman – breakdown in working relationship
Although not strictly and employer/employee relationship, Walt and Jesse provide a clear example of a breakdown of a working relationship. A fundamental and irretrievable breakdown in work relations between two employees can give sufficient grounds for an SOSR dismissal. This would be appropriate where the individual conduct does not give sufficient grounds for a conduct dismissal, but the business cannot continue to function with a particular broken working relationship in place. Care needs to be taken if using this as a reason for SOSR. Whether it is fair is very much fact specific, and an employer must be able to show that there has been a fundamental and irretrievable breakdown. This is not as easy as many employers may think and before dismissing on this basis, you’d better call Saul (or any other lawyer of your choice).
So what do these examples show?
Firstly these examples strongly suggest that I need to engage in a more active social life.
However secondly these examples demonstrate that SOSR dismissals cover a wide breadth of situations. From employees going to prison, to employees trying to kill each other (or slightly less extreme examples of a breakdown in the working relationship), this is a slightly obscure (and sometimes interesting) area of law. One size does not fit all.
If an employer does intend to rely on an SOSR argument, it is generally always wise to show that they have generally considered matters and have applied a reasonable mindset. As every case is judged on the individual facts, it can be a complicated area of the law.
To avoid too many SOSR “Damages” or to avoid any SOSR unfair dismissal tribunal claims going down to “The Wire”, contact the employment team at Blackadders when considering SOSR as a dismissal option. Although it might not save you “Billions”, it is definitely more cost efficient speaking to us before pulling the trigger rather than defending a claim retrospectively.