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Can you fairly dismiss because of disruptive antagonism between two employees?

Posted on June 13, 2013

17 May 2013

Most employers are aware that under the Employment Rights Act it can be fair to dismiss for redundancy, misconduct, and capability / absence. However the mop-up provision of dismissal for ‘Some Other Substantial Reason’ under s.98(1)(b) ERA  (‘SOSR’) is less well-know and covers a wide range of potential scenarios.

 

Examples of successful SOSR defences by Employers in reported cases have included dismissals:

  • Because of disruptive antagonism between two employees in a small business (Triangle Cars v Hook).
  • Because of pressure from a customer or important 3rd party on the employer.
  • Due to an employee’s refusal to sign a new contract of employment containing restrictive covenant,  if the restriction was genuine and necessary
  • Due to a  genuine and reasonable risk of disclosing confidential business information to a spouse who worked for a competitor
  • For refusing to accept new (worse) terms of employment pursuant to a company reorganisation undertaken for sound business reasons
  • Where a dismissal is of a temporary replacement taken on to cover for an employee who has returned to work after maternity leave provided the temp was informed in writing of the position (a statutory SOSR).

 

Employers should tread carefully when considering an SOSR dismissal, but otherwise intractable problems can sometimes be resolved using this approach.

 

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