Factors to consider before dismissing at the request of a third party

Factors to consider before dismissing at the request of a third party

Published:

Author: Kevin McCavish

Employers may need to dismiss an employee in various circumstances because a third party has requested it. The EAT has recently considered what would render such a dismissal fair.

The case

In Bancroft v Interserve the Employment Appeal Tribunal (EAT) has considered whether a dismissal at the request of a third party was fair.

Mr Bancroft was employed as a chef by Interserve which had a contract with the Home Office for catering services. Mr Bancroft had worked at the same bail hostel for over seven years. He'd had a strained relationship with the hostel's manager who eventually wrote to the Home Office requesting that Mr Bancroft be removed.

The service contract with Interserve included a clause under which the Home Office could require the removal of any of the contractor's staff which it considered "undesirable" to have on the premises and it did not have to give any reasons for such a request.

Interserve complied with the Home Office's request and removed Mr Bancroft from the hostel. When it was unable to find him a suitable alternative position he was dismissed and he claimed unfair dismissal.

Factors for employers to consider

In the previous case of Henderson v Connect South Tyneside Limited [2010] IRLR 468 the EAT set out the principles which tribunals must apply in these cases. The main point is that an employer faced with a request from a third party to remove an employee must consider the injustice likely to be caused to that employee and must do all they reasonably can to avoid or mitigate that injustice. This is likely to involve trying to get the client to change their mind and, if that proves impossible, looking to re-deploy the individual.

In this case the EAT was critical of the employer for simply assuming that the hostel would not take Mr Bancroft back, it failed to even ask the question or seek to explore the rights and wrongs of the relationship breakdown between the parties.

Comment

These types of cases present employers with a difficult balancing act between keeping their client happy and acting reasonably towards their employee. Given the obligation on employers to dismiss fairly contractors should think carefully before signing up to provisions in service contracts like the one in this case. Even where a client has a broad discretion to banish employees without giving reasons, employers should still act to satisfy themselves that nothing more can be done to persuade the client to keep the employee. Exploring whether a compromise can be reached between the parties is likely to be a minimum step (even if it is thought the answer is likely to be "no"). Employers would be advised to document the steps it takes in such situations.