Some Other Substantial Ground (SOSG) Explained…Posted: June 1, 2012 | |
Section 4 of the Unfair Dismissals Act highlights that potentially fair reasons for dismissal may be based on the capability and competence of the employee, the conduct of the employee, and the fact that the employee’s role has been made redundant.
Most employers would be well aware of these grounds for dismissal but there are scenarios where an employer may feel as though they have justifiable grounds for dismissing an employee but potential grounds for dismissal does not necessarily fall into these age-old categories.
What can an employer do such a scenario and can they lawfully dismiss? Importantly, an employer can lawfully dismiss an employee, even though the matter wouldn’t be considered conduct, competence or redundancy, in circumstances where there are some “other substantial grounds justifying the dismissal” (commonly referred to as SOSG dismissal). So what are the most common circumstances in which an employer may dismiss an employee for SOSG and what procedure should an employer follow?
Third Party Pressure
It may often be the case that an employer will have a number of employees working on their customers’ sites (e.g. a security company’s employees working at a supermarket, a contract cleaner etc.). A regular occurrence that employers face would be where their customer no longer wants that employee on their site, for whatever reason, and the employer is potentially left with a scenario where they cannot offer any alternative work. What can be done as it is clear that an employee, through no fault of his own, may be dismissed despite having done nothing wrong and, as such, suffers a strong injustice?
In the case of Henderson v Connect (South Tyneside) Ltd  IRLR 466 the Employment Appeals Tribunal in the UK stated that if the employer had done everything that it reasonably could to avoid or mitigate the injustice brought about by the stance of their client, most obviously by (a) trying to get the client to change his mind and, if that was impossible; (b) trying to find alternative work for the employee, but had failed; then any eventual dismissal would not be unfair. This is the case even though the outcome for that employee might be unjust as that injustice is not the result of any unreasonableness on the part of the employer. As the injustice stems directly from the customer/client and the employer has acted reasonably in the circumstances then there can be no unfair dismissal. This has been the position in Ireland for quite some time now.
However, the employment rights bodies in Ireland view the reasonableness threshold as a very high hurdle for an employer to jump. Employers in this scenario are quite often reluctant to rock the boat with their customer and as such end up effecting a summary dismissal of the employee. However, the Employment Appeals Tribunal stated in both Sheehan -v- Keating’s Bakery (UD 738/1989) and McGuirk -v- Shamrock Oil Supplies (UD 528/1996) that the employer must request a meeting with the highest level of management of the third party customer to clarify the allegation or problem with the employee and seek a resolution. Indeed, a failure to do so may result in any subsequent dismissal being rendered automatically unfair.
Employers in these scenarios are not dismissing the employee on the basis of any misconduct but are doing so solely at the behest of the third party customer and, as a result, the employer is expected to take reasonable steps to retract the relationship and maintain the employee in his position. If the third party is insistent that the employee be removed then the employer, having taken all reasonable steps, may look to then dismiss.
Even where the third party body is insistent an employment rights body may view the dismissal as ultimately unfair where the risk to the third party is at best a remote risk. This can be seen from the case of Merrigan -v- Home Counties Cleaning Ireland Ltd (UD 904/1984) which concerned an employee who worked for a cleaning company and was based in a hospital (the third party). A newspaper article highlighted that 3 of this employee’s 7 children were heroin addicts. The hospital ordered her removal from the site as “it would look bad” if the employee continued to work for them and they implied that the cleaning company would lose the hospital contract if she wasn’t removed. The employer sought to find alternative work for the employee but she refused two other offers of suitable employment and was then dismissed as a result.
The EAT ordered that the employee be re-engaged stating that “the job of an employee cannot be at risk on the mere whim of a third party to the employment relationship”. The threat to the hospital was described as “at best remote” and the link between the employee and the hospital was not outlined in the newspaper article. Furthermore, there was no evidence that the hospital and employer had investigated the alleged risk. This case is evidence on the steps deemed reasonable before an employer should consider the dismissal option.
As a result, if an employer is faced with a third party pressure scenario whereby a customer wishes that an employee be removed from their sight then the employer should adopt the following procedure:
- Notify the employee of the matter and put them on unpaid leave until the matter is resolved
- Write to the third party lobbying them on the employee’s behalf and request a meeting to discuss the matter. The purpose here is to get the third party to change their stance
- If the client insists on the employee’s removal then clarify the reasons why.
- The clarification of the reasons for dismissal should consider if there is a risk to the third party
- The implications for not removing the employee for the employer should be teased out with the client (i.e. is there a risk of the client cancelling their relationship with the employer?)
- Invite the employee to a formal meeting to discuss the matter and get their viewpoint
- Try and identify alternative vacancies in the company even if it is a lower role. Offer the employee a position if there is a suitable vacancy
- If there are no vacancies or the employee rejects an alternative then the employer may proceed with dismissal
This is a common SOSG matter and concerns a scenario whereby, for whatever reason, an employee has become restricted by statute from performing their role with the company. A good example is that of a delivery driver: if the employee loses their driving license or due to a number of car accidents has become uninsurable as insurance companies won’t take the risk then an employer may have no other option but to terminate the driver’s employment. This is because the employee is not legally permitted to carry on their job without a license or without insurance and the company cannot have the employee driving illegally.
In Brennan –v- Bluegas Ltd. (UD 591/1993) the EAT considered a case where an employee had three accidents in a six month period. As a result of these accidents, the employer subsequently dismissed the employee as their two underwriters refused to provide insurance cover as a result and they substantially increased the existing premium. The employer could evidence that they were unable to secure alternative insurance from six other insurance companies. As a result, the employer dismissed Mr Brennan as they could not source insurance for him. The EAT decided that in the circumstances the dismissal was not unfair as the employer had acted reasonably before dismissing the employee by trying to source alternative insurance cover. However, the EAT in Manning –v- Indigo Holdings Ltd. (UD 1001/1994) stated that the employer must be able to evidence in writing that insurance companies will not cover the employee or that insurance has become prohibitively expensive.
Thus in a scenario where an insurance company withdraws insurance cover for an employee or raises the premium to an unsustainable level, the employer must firstly lobby as many alternative insurance companies as they can in order to find an alternative underwriter. These attempts should be evidenced in writing in order to discharge the employer’s burden of proof. If the employer cannot source suitable alternative cover then they should invite the employee to a formal meeting to discuss the matter and seek their proposals. If no alternative can be found then the employer may look to dismiss the employee on the basis of having SOSG.
In the case of Haugh and Haugh –v- Atlanta Nursing Home Ltd., (UD 490/1994) the EAT had to consider the fairness of dismissing a nurse once new regulations came into force which meant that this employee no longer held sufficient qualification for her nursing role. The EAT accepted that as the employee was no longer sufficiently qualified and taking into account that she was offered alternative employment the tribunal determined that her dismissal was not unfair as the employer was bound to comply with legal requirements.
A common question from employers is whether or not they can justifiably dismiss an employee if it is discovered that the employee requires an employment permit but does not in fact have one. From the outset it is important to note that both employers and employees have a duty to ensure that the employee has a work permit. Thus, the employment rights bodies in Ireland take a dim view if an employer does not clarify at the commencement of employment whether or not the worker requires a work permit and then seeks to justify dismissal at a later stage on this basis. The employment bodies take an even dimmer view where an employer fails to renew a worker’s permit and again tries to justify the dismissal of an employee on the basis of their lack of a valid permit. In the case of Dubyna -v- Hourican Hygiene Services Ltd. (UD 781/2004) the EAT held that “the onus was on the employer to make application for a work permit and given their familiarity with the process it is reasonable to conclude that the processing of an application for such permit on [the employee’s] behalf was an express term of the claimant’s contract of employment with the respondent.” The EAT went on to hold that even if there is no express term in respect of work permits it is the case that an employer’s renewal, or application for renewal, of an employee’s work permit is an implied term of that employee’s contract of employment. It is worth noting that in the Dubyna case the employee won €33,600 compensation for unfair dismissal. A similar decision was reached in the case of Golovan -v- Porturlin Shellfish Ltd. (UD 428/2006).
Thus, in a work permit scenario, employers are advised to take all reasonable steps before dismissing an employee on the basis that they no longer retain a valid work permit. In the Dubyna case a substantial sum was awarded as a result of the employer applying for a work permit and then withdrawing that application and seeking to rely on the lack of a permit as a ground for dismissal. This employer took deliberate action to ensure this employee didn’t have a work permit and then sought to justify dismissal on this basis. Not only is this unfair but it is also potentially discriminatory. In the Golovan case it was the employer’s failure to ensure the employee had a permit which was the problem and while they may have acted in good faith, their failure to ensure the employee had a permit should not be used as a ground to disentitle the employee. The best advice here is to ensure employees have the appropriate permits at the time they commence employment. Throughout the course of their employment then the employer should ensure that the permit remains valid and if it is up for renewal then they should apply for a new permit on the employee’ behalf. If this is rejected by the relevant Government Department then the employer may look to dismiss having previously taken reasonable steps.
The Irish courts have applied the SOSG category broadly and have recognised that an employer may dismiss even if the reasons are non-financial such as where an employee does not comply with their employer’s particular ethos. From the outset it is noted that employers should exercise caution in the field of “employer’s interests” as a grounds for dismissal but it is possible to base a decision on this somewhat indefinable ground. For example, in the case of Flynn -v- Power  IR 648 it was held that a convent school could justifiably dismiss an employee after she became involved in an illicit love affair with a married man in a small country town. This decision to dismiss was fair given the nature of the employer and its religious ethos and the fact that the employee’s apparent debauchery fell outside the ethos of the religious school and her presence would only serve to have a negative influence on the students. It is questionable whether or not a similar decision would be reached today but it serves as an example of where an employee can fall foul of an organisational culture.
Similar to third party pressure, an employer should follow the procedure below if they believe that the employee is restricted by statute from performing their work:
- Notify the employee of the matter and put them on paid/unpaid leave (depending on the circumstances) until the matter is resolved
- Seek clarification on the restriction. For example write to the insurance company if insurance cover has been withdrawn.
- If the matter cannot be resolved then invite the employee to a formal meeting to discuss the matter and get their viewpoint
- Try and identify alternative vacancies in the company even if it is a lower role. Offer to the employee if there is a vacancy
- If there are no vacancies or the employee rejects an alternative role then the employer may proceed with dismissal
- If the matter concerns the lack of suitable qualification then the employer ought to consider the possibility of the employee obtaining that qualification as an alternative to dismissal
Should a situation of SOSG arise, an employer must still follow a fair and reasonable dismissal procedure. This procedure may vary depending on the substantial grounds justifying dismissal as different issues require differing levels of employer action. For example, in third party pressure scenarios an employer should lobby the third party on behalf of the employee to try and save their position. However, this type of action would not be required where the employee who is a driver has lost their driving license as the employer can hardly request the courts to change their mind. In the latter scenario a simple process of seeking alternative employment should be followed. Thus, an employee is still entitled to fair process and should be invited to a formal meeting to get their side of the story. This would involve a discussion of potential alternative roles they can do or efforts that can be made to retain them in their current role. If no reasonable suggestions arise and there is nothing else that can be reasonably done then the employer may justifiably dismiss the employee for SOSG.