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Some Other Substantial Reason, and Statute VII

March 27, 2017

The University of Leeds management has made a strong and public claim that it must update Statute to reflect changes in employment law over the last quarter century. This is misleading as far as ‘Dismissal for Some Other Substantial Reason’ is concerned. SOSR existed in law a quarter of a century ago in the same form as it exists today, and was expressly dismissed as inappropriate in a HE context when Statutes were written.

Firstly, let us recall that the current Statute was introduced by the Education Reform Act (1988).

The Labour Government as part of its Social Contract of the 1970s had introduced the Employment Protection Act 1975 followed by the EP (Consolidation) Act 1978, where employees had the right not be unfairly dismissed. This legislation introduced the catch-all Some other Substantial Reason:

Employment Protection (Consolidation) Act 1978

57.-(1) In determining for the purposes of the Part whether the dismissal of an employee is fair or unfair, it shall be for the employer to show –

(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

(b) that it was a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

This was replaced by Employment Rights Act 1996

98. – (1) In determining for the purposes of the Part whether the dismissal of an employee is fair or unfair, is shall be for the employer to show –

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

Clearly, SoSR already existed in employment law at the time of the drafting of the current Statute and was not included (deliberately and not by oversight) in that Statue, which was a model Statute written for the sector (now pre-92). At the time of parliamentary drafting of the 1988 Education Reform Act, the Lord Chamberlain of the time stated:

“that Act [Employment Rights Consolidation Act (1978)] allows dismissal for some other substantial reason. We have not followed that […] The person covered under that legislation can be dismissed not only for good cause in relation to conduct and the like, but for some other substantial reason. We have missed that out but we have made a wider definition of redundancy applicable here in order to cover the particular situation of the university.”

The current Statute does not need ‘modernising’ by the addition of SOSR. It was never there for a good reason, and neither the HE environment nor employment law has changed sufficiently to require it. What has changed in HE since 1988 is an influx of managerialism from non-HE industry that assumes that practice in one context is of value or even necessary in the other.

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