Dismissals Due to Third Party Pressure

Posted in : HR Updates on 3 February 2016
Helen O'Brien
Personnel and Training Services

Many businesses have employees who, as part of their role, work partly or wholly on a client’s site.  This can present difficulties for the employer, as the employee is not as easily within their control and if issues arise between the client and the employee, their ability to react may be compromised.

What should employers do if the relationship sours to the point that the client insists on the employee’s removal? Investigate.

Investigating request for dismissal from third party

The first step should always be to contact the client and get as much information as possible regarding the problem.

Begin with why they want the employee removed?

This allows you to assess whether there could be a separate disciplinary matter in relation to your own internal process, but also the opportunity to consider the justification of the request and determine if the client will reconsider their decision.  If a client is adamant that they no longer want the employee on site and won’t reconsider the decision, then it is important to have this decision in writing if possible. This is to enable you, as the employer, to evidence the fact that you have asked the client to reconsider but that it is not possible for the employee to remain on the site they have been working at.

The question then arises what to do with the employee. You cannot force a client to accept an employee on their site and it is likely damage the commercial relationship with them if you were to try. This leaves the employer in a tricky situation.

If the request to remove the employee is down to a potential act of Gross Misconduct then things may be slightly simpler given that the company’s normal disciplinary procedure could be followed.  Ultimately in these circumstances the employee may be dismissed if Gross Misconduct is found to be proven.  However, if the employer is unable to obtain enough evidence, if it is a case of minor misconduct or if it is where the two parties are simply not getting on, then it is a different and more difficult situation.
 
The employer should ensure that the employee is kept informed of what is happening and establish if there is an alternative location to work from or if not, whether there is an alternative role they could undertake.  As the employer you have a duty to attempt to find the employee alternative work taking into account any vacancies you may have.
 
If there is no alternative work and remonstrating with the client doesn’t alter their position, then there is an option of effecting a dismissal using the legal defence known as Some Other Substantial Reason, (SOSR), in this case as a result of third party pressure. This would require a formal dismissal meeting to be held and all the options should be considered and discussed with the employee to determine that there are no alternatives.  This outcome should be a last resort.

An employer needs to demonstrate that they really had no option but to terminate the employment.  If it is felt that the employer did not do enough to mitigate the situation and try to prevent a dismissal situation, then they may well be unable to defend an Unfair Dismissal claim, were the employee to bring one. 
 

This article is correct at 03/02/2016
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Helen O'Brien
Personnel and Training Services

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