Is it necessary to hold a meeting with an employee before dismissing them for some other substantial reason?
An employer can rely upon a number of potentially fair reasons to dismiss an employee under the Employment Rights Act 1996. In addition to the usual grounds, such as capability, conduct and redundancy, the Act allows a further potentially fair reason under Section 98(1)(b) which is a “catch all” called “some other substantial reason” or “SOSR”. Under this heading an employer can justify a dismissal which does not fall neatly into some of the other categories, provided the reason is genuine and substantial.
In the reported case below, the employer proceeded to dismiss for this reason without holding a meeting and the question therefore was whether that dismissal was necessarily unfair, because of the absence of such a meeting? Was it always necessary to hold a meeting before dismissing?
Not always, held the EAT, in Hawkes v Ausin Group (UK) Ltd.
The Claimant was a reservist with the Marines. He signed up (voluntarily) for a 7 week overseas call up. His contract of employment permitted a week's unpaid holiday per year for his reserve duties. Mr Hawkes informed his employer that he would need 7 weeks' leave in order to complete the call up. After some enquiries, Ausin Group found out that the call up was not mandatory and did not want him to go ahead with it.
Once the Respondent realised that the Claimant had chosen to go, despite the call up not being mandatory, he was summarily dismissed.
The EAT held that this was not a misconduct case where it would usually be considered necessary to hold a meeting in order to consider the employee's explanations. It said this was a dismissal for some other substantial reason. In that context, it was open to the tribunal to make a finding of fact that a meeting would not have changed the position because of the Claimant's firm commitment to the exercise. Accordingly the process followed, with no meeting, was not necessarily unfair.
This case is fairly fact-specific. It should not be taken by employers in the motor industry to mean that a meeting before dismissal, when an SOSR dismissal is contemplated, should always be dispensed with. It does confirm that in some circumstances the absence of a meeting does not always render a dismissal unfair.
Motor Industry Legal Services
Motor Industry Legal Services (MILS Solicitors) provides fully comprehensive legal advice and representation to UK motor retailers for one annual fee. It is the only law firm in the UK which specialises in motor law and motor trade law. MILS currently advises over 1,000 individual businesses within the sector as well as the Retail Motor Industry Federation (RMI) and its members.