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Dismissals where the employer relies on ‘some other substantial reason’ as the potentially fair
reason for dismissal are less common than for redundancy, capability and conduct, but they are
not infrequent. This article looks at how an unfair dismissal can arise from this potentially fair
reason and how to focus on the key issues for evidence and argument.
Preliminaries
Michael Reed’s article on conduct dismissals in Adviser 173 sets out the preliminary points an
adviser must consider in any unfair dismissal claim -these are equally relevant in a ‘some other
substantial reason’ dismissal.
The law
S98 of the Employment Rights Act (ERA) 1996 requires the employer to show the potentially
fair reason for a dismissal; these are:
• capability
• conduct
• redundancy
• because continuing to employ the employee would contravene ‘a duty or restriction imposed
by or under an enactment’ or
• if the reason for the dismissal does not into fall within any of those categories, ‘some other
substantial reason of a kind such as to justify the dismissal of an employee holding the position
which the employee held’.
‘Some other substantial reason’ (‘SOSR’) can be viewed as a kind of ‘catch all’ category of
reason for dismissal bullying, but it does not give an employer freedom to dismiss for an
irrelevant or trivial reason. Once the employer establishes that there was SOSR it is for the
tribunal to determine whether it was reasonable to dismiss the employee for that reason in all
of the circumstances of the particular case, having regard to the facts, and to equity and merits.
Remember that a tribunal cannot substitute its own view for the view of an employer. Provided
that the reason is genuine, substantial and of a kind to justify the employee’s dismissal, there is
nothing to be gained in arguing that the employer could have taken a different view as to its
reason.

2. What types of reasons does SOSR ‘catch’?
The ERA 1996 does not define or give examples of what might be SOSR but a number of cases
have established typical circumstances in which an employer can put it forward as the
potentially fair reason. Remember that a potentially fair reason does not equal a fair dismissal
and the employer’s argument that the reason is capable of justifying dismissal does not mean
that it does justify the particular dismissal or that a fair procedure should not be followed.
Business reorganisation which does not create a redundancy situation
A redundancy situation arises where an employer’s requirement for employees to do work of a
particular kind ceases or diminishes Fair Work Commision. A worker who is dismissed as the
result of a redundancy situation has been dismissed by reason of redundancy even if ‘their’ post
is not redundant, so long as their dismissal is ‘attributable to’ the background redundancy
exercise. They will be entitled to a redundancy payment and may have a claim for unfair
redundancy dismissal. However sometimes an employer restructures its workforce but the
amount of work, and the number of employees required to do the work, are not diminished
overall. An employee may be dismissed because they do not fit into the new structure and an
employer may cite this as a SOSR dismissal - in which case no redundancy payment is owed. In
reality this happens rarely. It is a ‘no fault’ dismissal and the employer pays a redundancy
payment both as a discretionary gesture and because, on a practical level, it is less likely to get
sued, having compensated the employee to some extent for the loss of their job.