Unfair Dismissal – Some Other Substantial Reason (SOSR)

Howdens said that it no longer needed her. The Claimant rang the Respondent a week later. The Respondent alleged that she asked for her holiday pay and her P45 as she had a new job. The Respondent thought she had resigned. The Claimant alleged she had not asked for her P45 and had not resigned. Following the issue of her P45, the Claimant brought claims for unfair dismissal and age discrimination.

The Employment Tribunal dismissed the Claimant’s age discrimination claim, but found that she had been unfairly dismissed. In particular, the Tribunal held that the Claimant had been dismissed because of the Respondent’s mistaken belief that she had resigned and that this could not be a fair reason to dismiss.

The Respondent appealed.

The Employment Appeal Tribunal, allowing the appeal, made the following points:

1. An erroneous but genuine belief in a state of affairs which, had it in fact existed, would have been a fair reason for dismissal, could be a substantial reason for dismissal falling within Section 98(1)(b) Employment Rights Act 1996 (ERA) – SOSR. The Tribunal had erred in failing to consider this.
2. Once an employer has shown that the reason for dismissal is SOSR, then the fairness or not of the dismissal depends on the application of Section 98(4) ERA to the facts of the case. The Tribunal had erred in treating as automatic the conclusion that Section 98(4) could not have been satisfied in this case. 

The case was remitted to a fresh Tribunal to consider whether the Respondent had shown that the factual reason for dismissal was SOSR, and, if so, whether it was fair or unfair.