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When is a dismissal at the request of a third party unfair?

27th March 2013

Sometimes serious problems can arise for an employer when an important customer or client is so unhappy with an employee that they cannot or refuse to work with them anymore. A similar problem can arise when the employee is placed at the premises of the unhappy customer. An employer can be placed in a difficult position if the customer cannot work with the employee in question. But when is it fair to dismiss that employee in this situation? the Employment Appeals Tribunal has given guidance on this tricky problem.

In the case of Bancroft v Interserve the employer had a contract with the Home Office to provide catering services in a bail hostel. The terms of the contract they had with the Home Office stated that the Home Office could "require the removal of contractor staff whose admission would be undesirable"- without having to give reasons! There was a serious disagreement between the employee and the manager of the bail hostel. This had developed over some time, and had not been properly addressed by the employer. The Home Office wrote to the employer asking that the employee be replaced. The employee was then dismissed, without the employer having carried out any inquiry into the justification for the request. He subsequently presented a claim to the Employment Tribunal. The Employment Tribunal concluded that the dismissal was fair, and consequently the former employee appealed to the Employment Appeals Tribunal.

In reaching its decision on the appeal the Employment Appeals Tribunal considered the relevant case law. The Employment Appeals Tribunal noted that the csae law indicates that an important factor in such cases is whether or not there will be an injustice to the employee, and the extent of such injustice, in dismissing him/her in the circumstances. The Employment Tribunal had failed to address their minds to the issue of why the employer had not considered the rights and wrongs of the difficulty and dispute between the employee and the manager of the bail hostel. The Employment Appeals Tribunal therefore concluded that the employer had not done everything they could to mitigate the injustice caused by the third party's (ie the Home Office) request that the employee no longer work at the bail hostel. Having failed to consider this issue the Employment Appeals Tribunal referred the case back to the Employment Tribunal to be reconsidered.

The relevant case law indicated that employers faced with this sort of problem must take reasonable steps to inform themselves of the basis of and justification for the request to remove their employee from the premises of the third party (ie the premises of their customer or client).

The case law also indicates that before deciding to dismiss an employee in this situation the employer should consider if any alternative role is possible, which may retain their employment but in a way that avoids the problem with the customer/client in question. 

This case highlights the need to make suitable enquiries into the problem befoe dismissing an employee, and to see if there is an alternative role available if the differences with the customer/ client cannot be resolved.  Do not hesitate to contact us at Hallett Employment Law Services if you need help or guidance in dealing with a situation like this.  






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