Most employers are aware of the potentially fair reasons for dismissal - such as competence, capability, conduct and redundancy - as set out under Section 4 of the Unfair Dismissal Act. But are you aware that there may be other circumstances where an employee can be fairly dismissed?
These circumstances are categorised as SOSG or ‘some other substantial grounds’ – but it’s important to note that there’s no ‘one size fits all’ approach to SOSG dismissals, due to the broad nature of this category.
In order to ensure that a dismissal is justified, an employer must prove that:
- It was a necessary action
- All avenues were exhausted prior to dismissing the employee
The most common cases in which SOSG is successfully applied are due to statutory restrictions and third party pressure. So what does this mean?
Statutory Restrictions
This means that an employee hasn’t been able to comply with certain legal obligations as required by their role. They’re essentially restricted by statute from performing the role for which they were hired to carry out. Examples of this include:
- Work permits
- Licenses
- Qualifications
Take a lorry driver for example...
In order to carry out the role, the employee must have the correct driving license and be insurable. If for some reason the employee loses their license or becomes uninsurable due to a large number of accidents, the employer may have no option but to terminate the driver’s employment – this is because they can’t legally carry out the job without these two requirements.
Importantly, the employer must be able to show that they exhausted all avenues and that dismissal was the only solution. Was there anywhere else in the company that the employee could have worked? Has the employer contacted as many insurance companies as possible? In addition to this, a reasonable timeframe should be given to the employee to rectify the restriction if possible.
Case Law
In
Brennan – v – Bluegas LTD. (UD 591/1993), the EAT considered a case where an employee had three accidents in a six month period. As a result of these accidents, the employer subsequently dismissed the employee as their two underwriters refused to insure the employee and substantially increased the existing premium. The employer could show evidence that they contacted six other insurance companies and were unable to secure insurance. The EAT stated that in this circumstance, the dismissal was not unfair as the employer had acted reasonably before dismissing.
Third Party Pressure
In cases where an employer has a number of employees working on customer sites, they may be faced with the situation where a customer no longer wants an individual employee working there. The employer is potentially left with a situation where they have no reason to dismiss, but there’s no alternative work to offer. The client may threaten to retract its business due to the presence of certain employees.
So what can an employer do if this arises? It may be justifiable to address the client’s demands for the removal of that employee under the SOSG procedure. An employer must be able to prove that there’s a real threat to the client company’s business to warrant the employee’s dismissal. The employer should take reasonable steps to maintain the employee in the position. If the third party is insistent and the employer has taken all reasonable steps, they may then look to dismiss.
Case Law
In
McGuirk – v – Shamrock Oil Supplies (UD528/1996), the EAT stated that the employer must request a meeting with the highest level of management of the third party customer, in order to clarify the problem with the employee and seek a resolution. If an employer fails to attempt to carry this out, it may be deemed to be unfair dismissal. Similar to Statutory Restrictions, it must be shown that the employer exhausted all other avenues before dismissal.
If you need any further information or assistance on the issues mentioned here, please call our employment law advisors on the 24 Hour Advice Service on 01 855 5050.
