Some other substantial reason
[page 266]Section 98(1)(b) ERA 96 contains a “catch-all” provision, which is that it is fair to dismiss an employee for “some other substantial reason [SOSR] of a kind such as to justify the dismissal of an employee holding the position which the employee held”.
SOSR has been used to justify dismissal in several contexts. Examples include business reorganisations that result in job changes rather than redundancy and dismissals for refusing to agree to unfavourable changes to contract terms (“fire and rehire” – see below).
For this kind of dismissal to be fair, the ET must be satisfied that the employer acted reasonably, weighing the injustice to the employee of losing their job despite not being at fault against any prejudice to the employer (Dobie v Burns International Security Services Limited [1984] EWCA Civ 11).
The Acas Code does not apply to this kind of dismissal (Phoenix House Limited v Stockman [2016] UKEAT 0264/15). This means that the ET has no power to order a percentage uplift (or penalty) for unreasonably failing to follow the Code.