Where a customer pressurises an employer to dismiss, the employer must consider whether there will be injustice to the employee and, if so, how to alleviate that injustice before dismissing.
Whiteghyll Plastics is a shopfitting business, with a number of major customers including Morrison’s Supermarkets. Mr Greenwood, who was employed by Whiteghyll, carried out shop-fitting at Morrison’s. Greenwood was involved in rolling out new promotions in Morrison’s, which involved working through the night to set up for the following day. Whiteghyll received three complaints about Greenwood’s work from Morrison’s in quick succession. As a result Morrison’s asked Whiteghyll to remove Greenwood from its team. Whiteghyll considered whether there was alternative work available for Greenwood, but found that there was none. Shortly beforehand, Whiteghyll had made nine redundancies.
After going through its dismissal procedure, Whiteghyll dismissed Greenwood. Greenwood claimed unfair dismissal.
The tribunal found that there was a fair reason for the dismissal, namely “some other substantial reason”, and that Whiteghyll had acted fairly in dismissing for that reason. The tribunal said that Morrison’s was an important client that had the “whip hand” such that Whiteghyll had very little choice in the matter.
The tribunal accepted Whiteghyll’s evidence that there was no alternative work available. Greenwood appealed to the Employment Appeal Tribunal (EAT).
While the EAT accepted that there was a potentially fair reason for dismissal, namely pressure from an important client, it said that the tribunal had failed to go on to consider the nature and extent of the injustice caused to the employee as a result of the dismissal. This requires consideration of matters such as length of service, performance record and how hard it will be for the employee to find another job.
The EAT went on to say that if the employer finds that there is serious injustice to the employee, it should consider ways of alleviating the injustice.
The EAT remitted the case back to a different tribunal for a re-hearing to consider the injustice point.
Dismissing at the behest of a customer can be a fair reason for a dismissal, but before any such dismissal, the employer must consider the extent of the injustice to the employee and what steps can be taken to alleviate the injustice. This includes considering the employee’s length of service and performance record and the difficulties the employee will face in finding new work. An employer will be expected to ‘go the extra mile’ for an employee with long service, particularly one who has an exemplary service record.
After considering the level of the injustice, the employer must investigate ways of alleviating that injustice. This could include speaking to the customer to see if there is a way the situation can be resolved without removing the employee – for example by performance managing or retraining the employee. If that is not possible, consider alternative work and, if none is obviously available, consider creative solutions such as swapping the employee with one working for another customer, or perhaps finding a role for the employee that is not customer-facing.
If no alternatives are available, remember to follow the statutory dismissal procedure before dismissing.
By Judith Harris, professional support lawyer, Addleshaw Goddard
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