Employment legislation prescribes five potentially fair reasons for dismissal:

1. conduct;
2. capability, which includes poor performance, ill health and lack of qualification;
3. redundancy;
4. illegality, which applies where continuing to employ the employee would contravene a statutory restriction e.g. because of their immigration status; and
5. some other substantial reason.

Where a dismissal does not fall within one of the above potentially fair reasons, it is likely to be unfair and result in a claim for compensation.

In order to apply the “some other substantial reason” to dismissal, the reason must be fair and of a kind that could justify the dismissal of the employee holding the job in question.

One of the causes of dismissal that often falls within the “some other substantial reason” is dismissal at the request of a third party.

If an employer sends an employee to work at a client’s premises, then it is important that the employee is an ambassador for the employer’s business and has a good working relationship with the client. Where the employee does not meet with the approval of the client for any reason then it is of course open to the client to advise the employer that they are no longer willing to have the employee on their premises. This leaves the employer with a difficult situation to manage and will often result in the dismissal of the employee.

This is what happened in the recent case of Bancroft v Interserve (Facilities Management) Ltd.

Interserve’s customer exercised a contractual right to request that Interserve remove one of its employees from working at the customer’s property. The employee was duly removed as Interserve did not wish to risk their relationship with their customer. Interserve were not able to find any alternative employment for the employee and so he was dismissed. He claimed that his dismissal was unfair.

The Employment Appeal Tribunal held that Interserve had an obligation to take all reasonable steps to mitigate any injustice caused to the employee by the customer’s request. On the facts of this particular case, it seemed that Interserve had accepted the customer’s request without question, which could lead to a finding that the dismissal was unfair. The case has been sent back to the Employment Tribunal.

If you are faced with a similar situation in which a customer is refusing to allow one of your employees to work on their premises, you should consider what action could be taken to avoid injustice to the employee before reaching the decision to dismiss. You may need to consider meeting with the customer to identify the reasons for their decision and to consider with them whether any resolution may be reached. You will also need to consider whether there are any alternative duties for the employee either with other customers or in non-customer facing duties. As always, you should document what you have considered.

In general terms, if the Employment Tribunal is satisfied that you have taken all reasonable steps to remedy the situation and have been unable to either resolve the situation with the customer or place the employee in alternative duties then it is likely that the dismissal at the request of a third party will be fair.

For more information on this subject or any other queries about employment law, please contact Kate Booth on 01484 821309 or at katebooth@eatonsmith.co.uk
Posted Friday 18th of October 2013