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Disruptive employees – dimissing for ‘some other substantial reason’

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If you are struggling with a problem employee whose behaviour is affecting the morale of other staff, then you will be interested in hearing about the recent case of Lund v St. Edmunds School.

The case focused on the dismissal of an employee who had alienated his colleagues and affected staff morale due to his frustration with the school’s computer equipment.

In order to dismiss an employee fairly an employer has to have a fair reason and follow a fair procedure.

The school could not fairly dismiss the employee for reason of his conduct as the issue was not the conduct itself but how his conduct affected other staff.

Nor could they look to the other fair reasons for dismissal, those being capability, redundancy or breach of statutory restriction, as none of these applied in this situation.

Instead, the school dismissed Mr Lund on another fair ground for dismissal called ‘some other substantial reason’ (SOSR).

Typical situations where you may be able to use SOSR are where your employee:

  • Causes significant business disruption due to personality clashes
  • Refuses to accept changes to their employment contract
  • Is likely to divulge confidential business information
  • Can no longer be trusted; and
  • Causes important customers or other 3rd parties to call for thier dismissal.

In this case, the Employment Tribunal found the school was within its rights to dismiss Mr Lund on these grounds.  SOSR was a fair reason to dismiss in these circumstances.

However, the Employment Tribunal also found that the dismissal was procedurally unfair because:

  • Lund had no warning of the dismissal meeting
  • He had been given no chance to appeal; and
  • Nobody had tried to address his concerns about the computer system before “attitudes hardened on both sides”

Whilst the above points highlight what not to do when going through a dismissal process, the case of Lund v St. Edmunds School is important for another reason.

This is because the Employment Tribunal did not award an increase (an ‘uplift’) to Mr. Lund’s compensation for the school breaching the Acas Code of Practice. While this may sound unusual, the Tribunal deemed the Code did not apply to dismissals for ‘some other substantial reason’ as it made no reference to this.

However, this ‘loophole’ was soon closed as the Employment Appeal Tribunal overturned this decision, making it clear that the Acas Code of Practice does apply in SOSR cases. As a result, an uplift was applied.  Although the Employment Appeal Tribunal found that Mr Lund may have contributed to his dismissal, he did not contribute to his employer’s failure to follow the Acas Code of Practice.

So if you are planning on making an SOSR dismissal remember to follow the Acas Code to the letter.

Concerned about an employee’s behaviour?

If you are concerned about a potential Tribunal claim that your organisation is facing, or if you want further information and advice on how to avoid such claims, please do contact any of the employment team on 01332 226 149 for a confidential chat.

Offering online employment law advice for only £99 per year or fixed hours packages from only £120 per month, FB Support could be the ideal solution for addressing your employee concerns.

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