In considering the fairness of a dismissal, the first thing a tribunal will require the employer to do is show a potentially fair reason for the dismissal.
Generally, this is fairly straightforward; the employee will have been dismissed for a standard reason be it conduct, capability or redundancy (or very occasionally legal bar where the employee can no longer legally be employed e.g. due to immigration reasons). Employment legislation however recognises a fifth category of dismissal - some other substantial reason. This is used to catch dismissals which are arguably fair but which do not fall within any of the categories mentioned above.
It is often important for employers to classify correctly the ground of dismissal particularly in determining whether or not the employer must follow its own disciplinary or performance process and whether or not the relevant ACAS Code will apply to the dismissal. In the case of Ezsias v North Glamorgan NHS Trust, the EAT had to consider whether the employer had correctly characterised the reason for dismissal.
In this case, Mr Ezsias was employed as a consultant surgeon. He evidently had a fairly fraught working relationship with his colleagues, and expressed bluntly and frequently his concerns about the clinical standards of those colleagues. The Trust characterised these complaints, in a subsequent inquiry, as excessive, unacceptably detailed and unrelenting. Matters reached the stage where nine senior colleagues of the Claimant raised concerns about his behaviour and Mr Ezsias was suspended. A subsequent investigation concluded that relations between Mr Ezsias and his colleagues had broken down irretrievably and the Trust should consider whether Mr Ezsias should be disciplined or simply have his contract terminated. The significance of this choice was that, if disciplinary procedures were instigated, Mr Ezsias would have the protection of extremely detailed disciplinary rules. The Trust chose the latter course of action and simply terminated the contract on the basis that the total breakdown in relations amounted to a dismissal for SOSR.
Both the employment tribunal and the EAT found that the true reason for the dismissal was not conduct per se but rather was the breakdown in relations between Mr Ezsias and his senior colleagues. As such, this amounted to an dismissal on the grounds of SOSR and moreover a fair dismissal on those grounds, with the result that the detailed disciplinary rules governing Mr Ezsias employment were not brought into play.
There will be occasions where the behaviour of an employee or the circumstances surrounding him/her, while not in and of itself amounting to misconduct, will make it impossible to retain him or her in employment. Common examples are where relations in the workplace break down irreparably or where an employee works on the premises of a third party and the third party refuses to allow the employee to continue working there. While these are circumstances in which an employer may potentially show a fair reason to dismiss, employers should be wary of viewing them as short cuts to avoid instigating a proper disciplinary process when one is appropriate. Even if a SOSR reason for dismissal can be established, the employer must still overcome the second more difficult hurdle of showing that the dismissal itself was reasonable in all the circumstances of the case.