Dismissal At The Request Of A Third Party

The Employment Appeal Tribunal (“EAT”) in Bancroft v  Bancrift v Interserve (Facilities Management) Limited [2012] UKEAT 0329_12_1312 (13.12.2012) held that it was not  reasonable to dismiss an employee at the request of a third party, without first considering whether or not that request was justified.

The Respondent had a contract with the Home Office to provide a catering service to a bail hostel. Under the terms of that contract, the Home Office could "require the removal of contractor staff whose admission would be undesirable", without giving reasons.   

The case arose following a breakdown in the relationship between the Claimant  (who was a chef at the hostel) and the manager of the bail hostel. The Claimant had raised legitimate safety issues which the manager had not taken well. Following a complaint against him by a co-worker disciplinary proceedings were brought against him, which resulted in the Claimant receiving a first and final warning. The Claimant raised a grievance against the manager for the way in which he had dealt with matters. The manager made it clear that he did not want the Claimant back at the hostel, and the Home Office wrote to the Respondent asking that the Claimant be replaced. The Claimant was subsequently dismissed, without any inquiry into the justification for the request. His claim for unfair dismissal failed in the employment tribunal, and he appealed against that decision.

The EAT considered the case of Henderson v Connect South Tyneside Ltd [2010] IRLR 468 in which the President set out principles to be applied in considering the question of injustice in dismissals at the behest of third parties. The EAT quoted the following passage in that case:

"It must follow from the language of section 98(4) that if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client, most obviously by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee- but has failed, any eventual dismissal will be fair: the outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer."

In the Bancroft case, an alternative job had been offered (which would have involved a 30 mile journey tofrom work) but there had been no attempt to ask the Home Office to reconsider its decision (because it was felt that this was not likely to prove successful). The EAT held that the factor of whether there will be an injustice to the employee, and the extent of that injustice, will be an important consideration in deciding whether a dismissal was fair.

In this case, the employment tribunal had failed to address their minds to the issue of why the Respondent did not consider the rights and wrongs of the difficulties between the hostel manager and the Claimant. In those circumstances, the employment tribunal had not properly inquired as to whether the Respondent had done "everything they could to mitigate the injustice caused by the third party's request that the Claimant no longer work on their premises". Having failed to make all the necessary findings of fact, the decision could not stand and the case was remitted back to the employment tribunal to consider its findings further.

If you wish to discuss any aspect of employment law please contact Janet Long on her direct dial 020 3254 1435 or by email to j.long@pj-h.co.uk

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