Reason for dismissal
In order for a dismissal to be potentially fair, you must be able to show that the employee was dismissed for a reason that fits within one of following categories: capability or qualifications, conduct, redundancy, retirement, illegality or some other substantial reason of a kind such as to justify the dismissal (SOSR).
There is no further statutory guidance on what is meant by this final category but it is designed to catch potentially fair dismissals that would not fall into any of the other categories. It potentially covers, therefore, situations when the employee is dismissed at the request of a third party. We look at this issue more closely in this article.
Pressure to dismiss from customers or clients
The Employment Appeal Tribunal (EAT) has recently considered a case where an employer dismissed one of its employees because it had received, in very quick succession, three complaints about the poor standard of the employee’s work from one of its key clients. The client then told the employer that the particular employee was no longer allowed on its site.
In the circumstances, the employer felt that it had little option but to dismiss the employee and relied on SOSR as its reason for the dismissal. The employee claimed unfair dismissal. The tribunal found that the client had what it described as ‘the whip hand’ as it was a much larger company than the employer with the result that they could dictate who and what was and was not acceptable to it. The tribunal found the dismissal to be fair. The employee appealed.
The EAT said that when assessing whether a dismissal in circumstances like this will be fair, it is necessary to consider whether any injustice is caused to the employee as a result of being dismissed.
This requires consideration of factors such as the employee’s length of service, whether or not the employee’s work was satisfactory and the difficulties that the employee may face in obtaining new work. Although none of these factors are decisive, the EAT was of the view that they are matters which must be taken into account before reaching a decision to dismiss.
In this case, neither the notes of the disciplinary hearing nor the letter of dismissal showed that the injustice caused to the employee had been considered by the company. Equally, there was no evidence that the tribunal had considered this factor when deciding whether the company had acted reasonably. The EAT therefore found the tribunal’s decision to be flawed in this respect.
Are there any alternatives to dismissal?
Any dismissal in circumstances like this will not be fair unless you also consider what steps you could take to reduce the extent of any injustice to the employee before dismissal. For example, you may be able to resolve the conflict with the client or customer so that there is no need to dismiss the employee.
If attempts to resolve the conflict fail, you should consider whether you can transfer the employee to another position or site so that dismissal can be avoided. If there are no suitable alternative vacancies, you might consider swapping one employee’s role with another so that the employee is no longer dealing with the client in question.
Remember too, that depending on the circumstances giving rise to a complaint from the client or customer, it may be that the employee’s conduct alone justifies dismissal in accordance with your disciplinary rules and procedures. If so, pressure from a third party, that is SOSR, may not necessarily be the real reason for the dismissal but simply the trigger for it. If so, the reason for dismissal will be the employee’s conduct.
You must also act reasonably
Of course, just because you have one of the six potentially fair reasons for dismissal (as set out above), this does not necessarily mean that the dismissal will be fair. It is still for the tribunal to decide if it was reasonable for you to dismiss the employee for that reason in the circumstances, taking into account the company’s size and administrative resources.
The tribunal will answer this question by asking itself whether your decision fell within the band of reasonable responses that a reasonable employer might have adopted. Equally, if you do not follow a fair procedure, including following the statutory dismissal procedure, you will be found to have unfairly dismissed the employee.
Pressure from other employees
It is possible to rely on SOSR as the reason for the dismissal of an employee in circumstances where you are under pressure to dismiss him or her because of a personality conflict with another employee. The above considerations are all relevant in these circumstances although it is even more important to ensure that you fully investigate the circumstances and try to intervene at an early stage to seek to prevent the situation escalating to the point where dismissal is demanded.