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Disability and dismissal for some other substantial reason

Your employee’s attendance is unsatisfactory.  Can you use this to dismiss them for ‘some other substantial reason’ (SOSR)? 

The Employment Appeal Tribunal (EAT) in London recently highlighted the importance of considering alternative employment options before dismissing an employee for unsatisfactory attendance.

Background

The Claimant was an operational postal grade worker involved in mail delivery. Between 2015 and 2019, he had 32 periods of absence, totalling 297 days. Some of these absences were related to long-term medical conditions, and the Respondent had made concessions regarding some of his conditions.

In 2019, the Respondent moved to the third stage of its absence management policy, which involved considering dismissal. An occupational health report was obtained, and following a formal hearing, the Claimant was dismissed with notice on the basis of an unsatisfactory level of attendance that was unlikely to improve.

The Claimant brought claims for unfair dismissal and disability discrimination.

Employment Tribunal

The Employment Tribunal dismissed the claims, finding that the Respondent had not discriminated against the Claimant and that the decision to dismiss was reasonable in all the circumstances.

Employment Appeal Tribunal

The Claimant appealed on several grounds, including that the Employment Tribunal should itself have raised the possibility of redeployment when determining the fairness of his dismissal.

Considering case law, the Acas Guide to Discipline and Grievances at Work, and the Respondent’s policy, they should have considered redeployment as an alternative to dismissal.  The Employment Tribunal had failed to address this when considering whether the decision to dismiss the Claimant was reasonable in all the circumstances, even though the parties had not raised it.

The Claimant’s claim for unfair dismissal was remitted to the Employment Tribunal.

Comment

In this case, the dismissal could have been for a potentially fair reason known as ‘some other substantial reason’ (SOSR).  SOSR is a fair reason for dismissal that does not fall within any other potentially fair reasons (such as redundancy, misconduct, etc.). 

Before dismissing an employee for SOSR, as is usually the case when an employee is dismissed due to unsatisfactory levels of absence, you must consider whether there are any alternatives to dismissal, such as redeployment into another role.  The absence of this stage is likely to render the dismissal unfair.

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