The circumstances in which an employment relationship ends are rarely straightforward. Whilst we are familiar with viewing dismissals through the lens of conduct, capability, redundancy or contravention of a statutory duty the law recognises that there are legitimate reasons to dismiss an employee that do not fall within these categories.

When determining whether a dismissal is fair or unfair the starting point is Article 130 of the Employment Rights (Northern Ireland) Order 1996 which lists the potentially fair reasons for dismissal. However, an employer may dismiss outside these reasons if the reason for the dismissal is “some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

Any such decision must follow a fair process in line with the statutory dismissal procedure.

What Is Some Other Substantial Dismissal

The legislation does not provide a definition as to what constitutes some other substantial reason. Nor has any statutory guidance been issued to bring clarity to this question. However, the reason must not be insignificant or trifling and it must be a reason which justifies dismissal.

Employers must avoid conflating the reasons for dismissal. The legislation is drafted in such a way that a dismissal must be for a reason specified in the legislation i.e. conduct, capability, redundancy, contravention of a statutory duty or some other substantial reason. By definition, a reason for dismissal cannot be both some other substantial reason and a conduct issue, for example.

Some common examples of what the Tribunal has held amounts to some other substantial reason are listed below.

Fire and rehire

Dismissals in circumstances where an employee refuses to accept a change in their terms and conditions are potentially justified under the heading of dismissal for some other substantial reason provided that there are genuine business reasons for the change and a fair process is followed.

In such circumstances an employer may be able to argue that severe financial distress or exhaustive attempts to renegotiate the contract amount to some other substantial reason.

Reorganisations

Situations often arise where a business goes through an internal reorganisation which impacts the viability of certain posts. These scenarios are often covered by redundancy. However, in circumstances where the reorganisation does not involve the cessation of diminution of the need for work of a particular kind, some other substantial reason can be a potentially fair reason for dismissal.

Protecting the business from competition

The Tribunal has held that protecting the business from competition is potentially some other substantial reason justifying dismissal. Examples include an employee who unreasonably refused to sign an updated contract including restrictive covenants.

Bad relations with their team

It may be fair to dismiss employees following a breakdown in relationships within a team if the breakdown in relationships is causing serious problems for the employer’s operations.

In Perkin v St Georges Healthcare NHS Trust [2005] EWCA Civ 1174 the England and Wales Court of Appeal held that an employee’s difficult personality cannot of itself amount to some other substantial reason, justifying dismissal. However, the way the difficult personality exhibited could.

Employers should be cautious in these circumstances as the breakdown in relations could be as a result of employees having different views and opinions rather than purely a personality clash. This is particularly relevant if the different views constitute a religious or political opinion which could result in a discrimination claim. Employers will also need to exercise caution when establishing who is at fault in the clash of personalities and will need to avoid any conscious or unconscious bias which may amount to discrimination because of a protected characteristic (for example age, sex or race).

Reasonableness

The statutory test for unfair dismissal is two-limbed.

1. The employer must prove that the ‘some other substantial’ reason is the sole or principle reason for the dismissal and that this reason could justify dismissal.
2. The employer must also demonstrate that dismissal for this reason was reasonable in all the circumstances.

To demonstrate the decision was reasonable an employer must demonstrate that the decision to dismiss was both a substantively reasonable response to the reason for dismissal and that the decision was procedurally fair.

The reasonableness of the decision to dismiss will be contingent on a number of factors such as the seriousness of the ‘some other substantial’ reason and the steps the employer took to avoid dismissal. For example, in cases involving a clash of personalities the Tribunal will expect an employer to have taken reasonable steps to resolve the situation e.g. mediation.

The statutory three-step dismissal process should be followed in dismissals for some other substantial reason. This will require the employer to:

1. Send the employee a written statement describing the reasons and circumstances leading them to consider dismissal;
2. Invite the employee to a meeting before action is taken. The employee will have the right to be accompanied. The employee must be given reasonable time before the meeting to consider the allegations. The employee must be notified of their right to appeal;
3. If the employee appeals the employer must invite them to a further meeting and the employer must inform the employee of their decision.

As a dismissal for some other substantial reason is not on the basis of the employee’s conduct, notice should be paid in these circumstances.

Conclusion

Some other substantial reasons are a lawful option to end an employee’s employment. However, they should be relied upon with caution and must always follow a sound, fair and reasonable process.