Need to downsize your staff? Here’s how – Part 2 SOSR Dismissal
DENTAL BULLETIN, ISSUE 41
Some Other Substantial Reason for dismissal (or SOSR dismissal) is not a type of dismissal that is utilised that often. However, it is a tool you can use as an employer if you need to make substantial changes in your business and need to dismiss employees, but one of the other potentially fair reasons does not apply.
First and foremost, if you are seeking to change an employee’s terms and conditions of employment, such as their hours of work, whilst you can make any changes unilaterally, to do so risks the employee resigning and claiming unfair constructive dismissal against you. As such we recommend that you either seek agreement of the changes or look to terminate employment and re-engage on the new terms.
Please note that even if you have a general clause that states you can make changes to the contract, the tribunals are unlikely to interpret these to mean you have a right to make any changes you wish. The best course of action again would be seek agreement or terminate.
Hold a meeting with any employee affected by the proposed change. Explain what the changes will be and why they need to take place. Give the employees a chance to ask questions.
Follow this up in writing and give the employee the option of accepting the changes or having an individual consultation meeting to discuss the changes.
If the employee agrees the change, the contract is amended and the change takes effect.
Whilst a verbal agreement is binding, ensure this is followed up by asking the employee to sign an acknowledgement that they accept the new terms. Also agreement may be implied by conduct. If the employee starts working to the new terms but does not state they are doing so under protest you may be able to rely on that conduct as them accepting the new terms.
If an employee refuses to accept the change then you can look to terminate the contract and offer employment on the new terms.
If you have already followed the process above, the next step will be to hold an individual consultation meeting with any employee who does not wish to accept the change to find out their reasons for refusing. Listen to those reasons and consider whether you can adjust the proposed changes to assist the employee and then hold a further consultation meeting.
Once you have reached the end of the consultation process, if the proposed changes still need to be implemented and the employee still refuses to accept them then you can look to terminate the contract and offer re-engagement on the new terms.
To defend any claim of unfair dismissal following termination, you will need to show a sound business reason for the changes to justify the SOSR dismissal. If you are able to do so the Tribunal will then do a balancing act between the reasonableness of your decision to impose the change and the employee’s reasonableness in refusing it, taking into account all the circumstances of the case.
Before consulting with employees refusing to accept changes, you might want to consider ‘pre-termination’ negotiations or settlement agreements. This would be akin to offering voluntary redundancy.
Discrimination on SOSR dismissal
Why is discrimination relevant to redundancies/SOSR dismissals? If you are looking to dismiss part time employees to replace them with full time employees or use attendance as a redundancy criterion, you may inadvertently discriminate.
Dismissing part time staff to replace them with full time staff might be viewed as indirect sex discrimination, if for example if the part time employees are all working mothers, and using someone’s absence to dismiss them when that absence is disability related could be deemed discrimination arising from disability.
You need to be live to these issues as you may be able to defend such a claim if you can objectively justify the treatment in question. In order to do so you need to show you had a legitimate business aim and that your actions were proportionate. For example, in the case of replacing part time staff with full time, you would need to show you had placed adverts in various sources, used robust recruitment processes, considered the suitability of all applicants rather than choosing your favourite and offered incentives for the part time position, such as paying GDC registration fees.
We understand this can be a minefield for employers; if in doubt seek advice. The legal costs for initial upfront advice on the best course of action will be much less than the costs of defending a claim and paying any potential compensation awarded.
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Laura Pearce, Senior Solicitor