Notification of potential dismissal (SOSR or statutory bar)

It is potentially fair to dismiss an employee for “some other substantial reason” capable of justifying dismissal. This is the “catch all” acceptable reason for dismissal. It is also potentially fair to dismiss an employee where otherwise keeping them in the job would contravene a statutory duty or restriction. Use our notification of potential dismissal (SOSR or statutory bar) letter to set up a meeting with the employee to discuss the proposal to dismiss.

What’s SOSR?

The legislation says that it is a potentially fair reason to dismiss an employee on the ground of “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held”. SOSR therefore tends to include those dismissal reasons that don’t fall neatly into one of the other potentially fair categories, comprising conduct, capability, redundancy and contravention of a statutory duty or restriction. It is for you to prove the reason for dismissal at employment tribunal and that it falls within one of the designated statutory reasons - unfortunately, not everything that doesn’t fit into one of the other categories will be an SOSR. Examples of some of the more common circumstances that tribunals have found to constitute SOSR capable of justifying dismissal are:

•         a necessary business re-organisation that does not amount to a statutory redundancy

•         the expiry of a fixed-term contract without renewal

•         pressure from a key customer or client or from another third party - for example, a client requests the removal of an employee from its site and you have no other work for the employee to do

•         dismissal of the temporary replacement for an employee absent due to maternity leave

•         dismissal of the temporary replacement for an employee suspended on medical grounds

•         foreign nationals - where you have a genuine belief, having made extensive enquiries, that they have lost their leave to remain in or permission to work in the UK

•         serious personality clashes or a complete breakdown in the working relationship between employees (assuming there is no gross misconduct issue for the disciplinary procedure to apply).

These circumstances are not exhaustive and there may well be other substantial reasons that are accepted by the tribunal. Dismissal for SOSR covers any number of possible eventualities and each case will always turn on its own facts.

What’s contravention of a statutory duty or restriction?

The legislation also says that it is a potentially fair reason to dismiss an employee on the ground that they cannot continue to be employed in the position which they hold without contravention (either on their part or yours) of a statutory duty or restriction. The three most common types of statutory bar dismissals are:

•  driving bans

•  foreign nationals - loss of their leave to remain in or permission to work in the UK. For this to apply, they must have actually lost their leave to remain in or permission to work in the UK, as opposed to you just having a genuine belief of this (the latter would be an SOSR dismissal instead)

•  care sector workers and those who work with children - being placed on the DBS Barred List as being considered unsuitable to work with vulnerable adults and children.

Again, this list is not exhaustive. Also, be aware that to rely on this type of dismissal, you do need to be able to show that continued employment of the employee does, in fact, contravene a statutory duty or restriction and there’s not just a suspected contravention.

Fair procedure?

As with other types of dismissal, a dismissal in one of the SOSR or statutory bar circumstances will be fair only if a fair procedure is followed and the dismissal is reasonable in all the circumstances of the case, i.e. it comes within the “band of reasonable responses” open to the employer. On the first issue, where it can become complicated is that the procedure you’ll need to follow won’t be identical for each SOSR or statutory bar dismissal because, as you’ll see from the lists above, the reasons can be widely different, so it’s just not possible to adopt a “one size fits all” approach. Thus, whilst you can use our Notification of Potential Dismissal (SOSR or Statutory Bar) letter to guide you, bear in mind you will need to tailor it accordingly and you must give serious thought to what would constitute a fair procedure for the employee. As regards the second issue, again this is not always easy to assess and will depend on the individual circumstances. For example, in most SOSR and statutory bar dismissal cases (but not in all cases, e.g. not in illegal working cases), you will need to have considered alternative employment or relocation for the employee prior to taking any dismissal decision and in cases of personality clashes, breakdowns in the working relationship between staff and third party pressure, you’ll need to be able to demonstrate that you did everything you could first to try and remedy the situation (e.g. you tried to persuade your client to have the employee back on site or you sat down with the affected employees to resolve the problem) and that you have written documentary evidence to support your decision (e.g. a letter of complaint from your client threatening to withdraw business if the employee remains in employment or prohibiting the employee from returning to their site, or grievances from other members of staff where they are issuing an ultimatum to resign unless the employee is dismissed).