3rd February 2022

SOSR: Some other substantial reason [for dismissal] : Lessons from Scottish Football

Scottish football player David Goodwillie recently signed for Scottish Championship club, Raith Rovers from Clyde FC.  Goodwillie used to play at a higher level prior to being declared a rapist in the civil courts, and ordered to pay £100k (jointly with another man, also a footballer) to the female victim.  No criminal prosecution was ever made.   He spent 5 years playing for Clyde after the court judgment. 

The transfer to Raith Rovers has sparked a backlash from Rovers fans, directors, and some of their female players.  One of the club’s high-profile sponsors (who has a stand named after her at the Raith Rovers stadium, Starks Park) pulled her sponsorship over the transfer.  Two directors resigned.  Captain of the women’s team resigned.  After the public outcry about the signing, Rovers have U-turned and indicated that they will not be giving their new signing any game time and will instead be in talks about his contractual position.  Much has been written about this hugely emotive subject and the appropriateness or otherwise of that signing.  This article intends not to comment on that angle of the saga, but rather the possible legal considerations. 

A scenario such as this gives rise to a number of legal considerations.  An employer needs to establish a potentially fair reason to dismiss an employee.  One such reason is known as some other substantial reason “SOSR” (others include conduct, capability and redundancy). 

SOSR can cover a whole myriad of circumstances; the key requirement being that the reason is substantial.  It cannot be whimsical or capricious.  One example of SOSR is where there is pressure from a third party to dismiss a particular employee.  This could be, for example, a high-profile customer who cannot stand a particular employee and who tells the company that “you either dismiss that person or I take my custom elsewhere”.  A difficult position for any employer who has to balance the rights of an individual employed by them against the wider interests of the business.  In order for an employer to avoid a finding of unfair dismissal in such a scenario, it must conduct a fair procedure.  The employer must also be satisfied as to the importance the third party in terms of future business, and whether the third party is genuinely serious, or just letting off steam. 

Reputational risk is another potentially fair reason for dismissal under SOSR.  The case law suggests that there is a reasonably high bar for the employer to dismiss fairly for reputational risk.  One recent case established that an employer might be able to fairly dismiss over concerns that customers were losing confidence in a particular employee.  However, it was necessary for the employer to have some evidence that customers actually felt this way. 

Other examples of SOSR include loss of trust and confidence, irretrievable breakdowns in working relations and even personality clashes.  In all such cases, employers require to allow the employee a fair hearing, consider any alternatives to dismissal (which should always be a last resort).   

Be aware (of SOSR).  Beware (of the need to be substantial).  Be fair (and carry out a fair procedure). 

If you require any Employment Law advice, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland.   

Jack Boyle, Director
Accredited by the Law Society of Scotland as a Specialist in Employment Law
Employment Law
Blackadders LLP
@EmpLawyerJack
www.blackadders.co.uk 

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