using 'some other substantial reason' when trust and confidence
is gone
One of the potentially fair reasons for dismissal is the mop-up
"some other substantial reason" (SOSR). There is no statutory
definition of SOSR and it is not always well understood. However,
'substantial' means not frivolous or trivial (which will depend on
the facts of the case). Examples of situations that could give rise
to an SOSR dismissal include changes to terms and conditions where
there is no redundancy situation; a conflict of interest which can
only be resolved by dismissal; a third party (such as a client)
imposing pressure to dismiss; or a breakdown in trust and
confidence. Whatever the grounds for it, an SOSR dismissal must be
reasonable in all the circumstances, and a fair procedure must
still be followed.
In a recent case, the employer cited SOSR as the reason for
dismissal due to a breakdown in trust and confidence. However,
although the employer could show that it had genuinely lost
confidence in the employee, the dismissal was not found to be
reasonable.
A deputy head teacher, Mrs Sylvester, was friends with another
teacher at her school, Mr Quinney. Mr Quinney was arrested and
suspended for possessing indecent images of children. Mrs Sylvester
was advised not to maintain contact with Mr Quinney, but she did,
discreetly and with the school's knowledge. The education authority
met with Mrs Sylvester and concluded that no action needed to be
taken in connection with her friendship with Mr Quinney. However,
concerns were expressed by parents (unbeknown to Mrs Sylvester),
and she was called to a meeting with the head teacher. She asked if
it related to the friendship, and the head teacher confirmed that
it did. Without further warning, Mrs Sylvester was suspended and
then ultimately dismissed for a breakdown in trust and confidence
between her and the head teacher. She appealed. Other allegations
that she was affecting the school's reputation and presenting a
safeguarding risk were rejected by the appeal panel, but the
dismissal was confirmed on the grounds of loss of trust and
confidence. When Mrs Sylvester brought a claim for unfair
dismissal, the school alleged the reason was SOSR, not
misconduct.
The Employment Tribunal (ET) found that the lack of warnings
given to Mrs Sylvester about the consequences of her continued
friendship with Mr Quinney made the dismissal unfair. The school
and education authority had tacitly condoned it. The loss of trust
and confidence was a consequence of conduct, which Mrs Sylvester
could have changed – indeed she had asked if she could avoid
suspension by giving up her friendship with Mr Quinney. Her
dismissal was so close to being a dismissal for conduct, that the
ACAS Code of Practice on Disciplinary and Grievance procedures, in
which warnings are fundamental for misconduct cases, could not be
ignored. The EAT noted that otherwise it would be a way for
employers to get around the ACAS Code if the employer could show a
genuine loss in trust and confidence.
This case is a reminder that even in SOSR cases, an ET has to
assess whether the employer acted reasonably in all the
circumstances in treating the SOSR as a substantial reason to
dismiss. In such cases the employer must show it had a genuine
belief that trust and confidence had been lost and that the reason
was not whimsical or capricious. SOSR can be important where
neither conduct, capability, redundancy nor illegality truly fit;
but it must be used with as much care as any of those reasons. It
seems logical that the ACAS Code will still apply at least to
certain types of SOSR (if not all). Indeed, dismissal without
warning for continuing a friendship that had previously been
condoned is perhaps a classic example of an unfair dismissal.
