UK Employment Alert 144: Dismissal at the behest of a third party
August 30, 2007
Background
In Greenwood v Whiteghyll Plastics Limited, the EAT has reminded employers that if they are considering dismissing an employee because of pressure from a third party (e.g. a client), then they must first consider whether there would be any injustice to the employee. If there will, then the employer must consider the extent of the injustice and what steps can be taken to alleviate it, which could include for example, moving the employee to another client.
The facts
W carried out shop fitting for various clients, one of which was a supermarket (M). M complained about G’s work and told W that G was barred from working at its premises. W disciplined G and as a result he was dismissed.
The Tribunal found that W had little choice but to dismiss G to maintain relations with M (who was one of its principal clients). The procedure, prior to dismissal, had been fair and there was no alternative client for G to be assigned to. The reason for G’s dismissal was “for some other substantial reason” and fair.
G appealed.
The Decision
G succeeded before the EAT. The EAT held that the Tribunal and W had failed to consider the injustice (and impact) that dismissal would have on G. While it is possible for an employer to justify dismissing an employee because of pressure from a third party, the injustice of the decision is a “very important factor” which must be considered when determining the reasonableness of the employer’s decision. The employer’s assessment of injustice can only be based on the facts it has available at the time of dismissal.
Factors that an employer should consider before dismissing, in such circumstances, include: (i) the employee’s length of service; (ii) his/her performance history, (iii) how easy it will be for the employee to find another job. This is a non-exhaustive list and no one factor is decisive. After considering the injustice, it may still be reasonable for an employer to decide that the injustice makes no difference and dismissal is the only option. But before reaching that stage an employer must apply its mind to the question.
In this case, although W had no alternative roles to move G to, had it considered the issue, it could have decided to swap G with another employee working on a different client to avoid dismissal (i.e. someone would have had to replace G on the contract with M).
What this means for employers
Employers cannot simply rely on a client’s request to dismiss an employee as justification for dismissal. An employer in such circumstances, must first consider the injustice and impact of its decision on the employee. An employer must also consider if there are any steps it can take to alleviate the impact (larger organisations with various contracts will be expected to consider moving the employee to a different contract before dismissing).
Other steps which it would be reasonable to take include trying to resolve the problem with the client directly, swapping the employee with someone else or training the employee to enable him/her to move within the employer.
When faced with such a problem, an employer should show in the notes of the disciplinary and appeal hearings, and the letter of dismissal, that it has applied its mind to the injustice that may be caused and demonstrated that it has considered alternatives to dismissal.
