With managers now spending an increasing amount of time resolving workplace conflicts, we take a look below at the options open to employers when such clashes get out of hand.
Often the behaviour of the employee is not enough to justify a dismissal for gross misconduct but the employer needs to act due to the tension existing between colleagues and the effect it has on the business.Examples of these effects may be increased rates of absence amongst staff and reduced productivity. In these circumstances the employer may wish to consider dismissal for some other substantial reason (“SOSR”).
SOSR is one of the five potentially fair reasons to dismiss an employee but one of the least used and understood.It is effectively a “catch all” and can cover a dismissal which is not for one of the other four potentially fair reasons which are;
- Capability
- Redundancy
- Conduct
- Breach of a statutory restriction
There is no statutory definition of what amounts to SOSR, however the case law in this area states that there must be a “substantial” reason for the dismissal and that the SOSR must justify the dismissal and not a lesser alternative such as redeployment.
Therefore the employer needs to show the SOSR is the only reason principal reason for the dismissal. This is a relatively low hurdle to overcome given the employer would only need to show, for example that the personality clash could justify the dismissal of the employee. The more difficult hurdle is to then show that the decision to dismiss for SOSR was reasonable in the circumstances.Whether a dismissal is fair in these circumstances will depend on the size of the business and the level of disruption that has been caused. The key thing for an employer to establish is that the clashes have caused and continue to cause substantial disruption to the business. This is easier to show if for example, the business is small, with one site and therefore with limited options to move the employee in question to a different location or department.
It is also important that the employer looks at the effects of the clashes and does not focus on the actual personality of the employee involved.So examples of other employees leaving due to the workplace atmosphere can be considered.
Although the ACAS code of practise does not apply to SOSR dismissals it is important the employer adopts a fair procedure prior to dismissing to reduce the chance of the employee seeking to bring and potentially succeed in a claim. Our advice in these situations is to try and identify the signs of conflict early and not to let things fester. It is worth trying to mediate between the parties, take minutes of these meetings and look to understand and address the issues behind the clashes. It is also worth setting out the expectations of future behaviour and the consequences if the behaviour falls short of those expectations..If matters continue and cannot be resolved then you should look to redeploy the employee to either a different department or potentially a different branch. Of course with many businesses this is not an option and conversely it means it is more difficult for a large national employer with greater redeployment options to dismiss for SOSR.If an employer has attempted and failed to resolve the issues and redeployment is not an option, then a meeting should be called with the employee. The employee should be informed that dismissal for SOSR is a possibility. At that meeting the employee should be informed of the detail of the issues and the effect of the clashes on the business. If there are no alternatives then the dismissal with notice can amount to an SOSR.
If you need advice on this or any other area of employment please email us at info@ramsdens.co.uk or call us on 01484 821 500 to speak to a member of our Employment Law team.