Picture this, you have a situation where a major client is considering taking their business elsewhere unless the employee whom you have assigned to their premises / contract is dismissed – what do you do when you are faced with such a situation?
As you are the party dealing with the potential dismissal, the answer is to exercise with caution and follow a fair procedure in light of the potential unfairness to your employee. Case law shows that you as the employer do not necessarily need to establish any fault on the employee’s part and it might even be a situation where you do not agree with your client’s request or demand. Your starting point would be to determine how serious the risk is to the company if you do not act on the request and to obtain written evidence of the request (where possible).
A client may also be exercising their contractual right to make sure that an employee to whom they object to is excluded from their premises or taken off their account. This potentially can then form the basis of a fair and lawful dismissal. You then have an obligation to follow a fair process to see it through to ensure there is not a claim of unfair dismissal.
In order to start the process, you will need to gather evidence to show that you were under serious pressure from your client to potentially dismiss the employee and that you acted reasonably in all the circumstances. You also have a duty to your employee to ‘plead their case on their behalf’ and to question the third party to establish the basis of their objection to the employee’s continued employment. If the client still maintains their stance with regards to their original request and you do not have grounds to terminate for a gross misconduct or a serious capability issue (having followed the appropriate procedure), then the next step is to consider any suitable alternative employment through the consultation process. It is only once you have exhausted all options and there is no alternative for the employee to be considered for, that you would confirm the termination of employment on the grounds of ‘some other substantial reason; namely third party pressure’.
When assessing the fairness of a dismissal which arises from third party pressure you must bear in mind that:
- Where a third party unreasonably or unfairly requires an employer to dismiss an employee, that is still a fair reason for dismissal.
- The dismissal must still follow a fair process – where there is an injustice to the employee caused by the third party, the employer must consider steps to mitigate that injustice. (Most obviously this is asking the third party to change its mind or the employer must give consideration to alternative employment).
- It is only when a failure to dismiss would result in serious harm to the business and where mitigation is not viable that the decision to dismiss will be fair.