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Back to basics: SOSR dismissals

Employment Law & HR
BG Purple

Sometimes it’s good to go back to basics. And it’s never more important to remember the basics than when considering whether you have a fair reason to terminate someone’s employment.

Under the Employment Rights Act 1998 there are five potentially fair reasons for dismissal. If any dismissal cannot fit within one of these reasons, it will be unfair. 

The first three account for the vast majority of dismissals: conduct, capability and redundancy. The fourth is niche; the concept of legal restriction on employment (eg. Where it is not possible to continue to employ someone because they do not have the right to work in the UK). 

The fifth reason is tantalisingly straightforward on first glance: “some other substantial reason of a kind as to justify the dismissal”. Sounds simple, right? Well, tribunals have grappled with the concept since its inception and a large body of case law has built up to give a limited number of narrow circumstances in which this reason will suffice. 

A recent case examines one of the trickier examples; a dismissal where the employer’s reputation is at stake. In most cases involving fear of reputational damage, the dismissal will be rooted in unacceptable conduct that the employer would rather not be made public. In this case, the claimant’s conduct was not in question so the usual route of a conduct dismissal was not open to the employer. 

The claimant, Mr Anderson, was employed by Chesterfield High School in Liverpool as a Senior Learning Mentor. From 2001 he exercised his statutory right to time off to carry out public duties in order to work as a Councillor for Liverpool City Council. In 2010 he became Leader of the Council, effectively a full time job. However, he remained on the school’s books and continued to receive a reduced salary and other contractual benefits on the basis that he was expected to return.  

In 2012 he was elected as Mayor of Liverpool, a full time fixed term post from which he could only be removed on the grounds of health or misconduct. In light of the changed circumstances, the school decided that it could not continue to employ Mr Anderson, particularly due to the risk of public outcry over Mr Anderson’s receipt of salary. 

Mr Anderson clamed unfair dismissal and, at the initial ET hurdle, the employment tribunal agreed with him. However, it chose to reduce his award to a nominal sum on the basis of the Claimant’s “contributory fault”. The School appealed, and the EAT ruled that, had the school followed a fair process, this would have been a clear example of a fair SOSR dismissal. However, since they had not, the tribunal’s apportion of a nominal award was correct.

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