Client demands employee is dismissed
An important client has heard a nasty rumour about one of your employees and they are now insisting on his removal from their contract. But you have no other work available, so where would you stand legally if you sacked him?
Pressure to sack
A major client has heard some unsavoury gossip about one of your employes and has made a complaint as a result. You feel it lacks merit, but it’s clear that if you refuse to do anything you will lose their contract. The problem is that you have no other work for your employee. So, how would the courts look at it if you dismissed him?
Recent case
This issue was considered by the Employment Appeal Tribunal (EAT) in the case of Henderson v Connect (South Tyneside) Ltd 2009. Connect (C) had contracted with its local authority (LA) to provide transport services for disabled persons. Henderson (H) was employed as a driver.
Unsavoury. The LA discovered that prior to H’s employment an allegation of sexual abuse had been made against him. The police had investigated, but took no further action. Nevertheless, the LA wanted him removed from its contract.
Unfair dismissal
Initially, C tried to resist this. But under the contract the LA had the right to “veto” any of C’s staff and insisted that H had to go. As C had no other work available, it had no option but to dismiss him. In response, H brought a claim for unfair dismissal.
It’s not unfair. The EAT acknowledged that H had been put in an unfair position, i.e. it was the unproven rumour that had led to his dismissal, nothing else. But it decided it was still fair on the grounds of “some other substantial reason”.
Why is that?
Under s.92 of the Employment Rights Act 1996 this is a “catch-all” acceptable reason for dismissal.The EAT feltit applied in this case because C could show that: (1) although it couldn’t stop the LA from exercising its right of veto, it did try to dissuade it from doing so; and (2) C used a fair dismissal process. The EAT also stated that employers must consider the level of injustice that any decision to dismiss would have on the employee, e.g. their length of service, and how hard it will be for them to find alternative employment.
Is the dismissal fair?
In a similar situation, you would be expected to act as C did by robustly challenging any demand to have an employee removed. You would also need to show that you had exhausted every option to find them alternative employment. If you can do this, it would show that whilst the actual dismissal may be “unjust”, you acted reasonably and fairly in the process that led up to it.
Tip 1. Notify your employee in writing about the risk of dismissal and arrange a meeting to discuss it as soon as possible (see The next step). They have the right to be accompanied here.
Tip 2.At every stagekeep them informed about what you are doing on their behalf to prevent their dismissal. This will help to stop them from alleging that you didn’t fight their corner.
For a free sample notification of potential dismissal meeting due to some other substantial reason letter, visit http://personnel.indicator.co.uk(PS 12.01.07).
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