Can an employee be fairly dismissed if a third party will not allow them to work on site?
22nd January, 2021
From time to time, businesses who have employees working on-site at client’s premises are presented with the issue of their client telling them they no longer want a particular individual to work there.
This often places the employer in the unenviable position of balancing their commercial relationship with their client against the duties they owe to their employee. Of course, should the employee be dismissed, it is the employer who will have liability for claims for unfair dismissal and not the client.
In cases of gross misconduct, the situation is obviously more straightforward, and the usual procedures can be adopted. However, it is much more difficult if the employee has, for example, committed a minor misdemeanour for which he or she cannot be fairly dismissed for misconduct. It can be even more difficult if a client just takes a dislike to an individual and decides their face no longer fits, even after many years.
In these circumstances, an employer can fairly dismiss an employee for ‘Some Other Substantial Reason’ (SOSR). This justification for dismissal is one of the five fair reasons under section 98 of the Employment Rights Act 1996 and in such circumstances, an employee is entitled to notice. The employer carries the burden of proof in showing that SOSR is the sole or principal reason for the dismissal and must show that the decision to dismiss for SOSR was reasonable in all the circumstances.
Often employees in this situation feel a real sense of injustice, particularly if they have done little wrong. However, the reason for the client’s request is largely irrelevant. What will be relevant is how important the client’s continued business is to the employer and how serious or definite the threat by the client is if the employee remains on site. Often threats can be to terminate the commercial relationship if the employee continues to attend work. If the business relationship is crucial, then a dismissal is more likely to be deemed fair because a business cannot be expected to jeopardise its commercial relationships for the sake of a single employee.
Notwithstanding this, the employer is required to consider any injustice to the employee and whether they can take any steps to alleviate that injustice. It is, therefore, a good idea for the employer in such circumstances, if possible, to write to the client to ask if they can discuss the situation, seek a resolution and see whether the client might be willing to reconsider their decision. Even if the client ultimately says no, the employer has taken steps to try to alleviate the injustice which will help it to defend claims. Of course, there may be certain situations where writing such a letter to the client will simply serve to aggravate the client even more, and so in that situation, the employer would have to argue that no reasonable steps could have been taken to prevent dismissal. Even in this situation, it is important for the employer to show it considered writing to the client but decided not to because it felt this would damage the commercial relationship further.
If there is no chance of reconciliation, before dismissing for SOSR, the employer must also consider whether it can find any suitable work for the employee to do elsewhere. If that is not possible, then an employer may be able to fairly dismiss the employee with notice. It is essential that when dismissing for SOSR the employee is made aware of the business reasons for the termination, the attempts that were made to consider any injustice and the fact that no alternative roles are available. This must be set out in writing and a meeting should be held to explain the reasons to the employee.
Often these situations can be avoided by monitoring the progress of the employees and keeping in regular contact with the client so any issues can be resolved without delay. It is also important to ensure employees are aware of their role and responsibilities when placed with at a client.
Every situation is different and we would strongly recommend taking legal advice prior to any dismissal for SOSR.
If you require any further information regarding some other substantial reason dismissal and third party pressure, please contact Paul Hennity.
Employment Law Associate