There are five potentially fair reasons an employer can rely on when dismissing an employee who qualifies for unfair dismissal protection by having two or more years continuous service. This blog focuses on the Some Other Substantial Reason (SOSR) defence that is often used if the dismissal does not fall in the other categories – capability, capability, redundancy or infringement of a right.
One of the circumstances for SOSR is where an employee is dismissed under pressure from a third party, such as a customer or supplier.
Previously decided cases have shown that the most relevant consideration in these circumstances is how important the third party’s continued business is to the employer and the seriousness of the threat made. However, the employer must balance this with whether and to what extent dismissing the employee may cause injustice to the employee.
In Henderson v Connect (South Tyneside) Ltd the employer provided transport services to a local council. The contract between the employer and the local council included wording that allowed the council to object to the use of any of the employer’s staff.
Mr Henderson was a bus driver for disabled children. The council became aware that Mr Henderson had been accused of child sex abuse and requested his removal relying on the contract term. Note: the employee denied those allegations and they did not lead to a formal criminal charge. The employer then dismissed the employee at the council’s request.
In upholding that the employee’s dismissal was fair, the Employment Appeal Tribunal (EAT) was influenced by the facts that, before dismissing him, the employer had (a) attempted to persuade the council to change its mind; and (b) considered whether it had other work the employee could do.
Quoting the EAT: “it must follow…that if the employer has done everything he reasonably can to avoid or mitigate the injustice brought about by the stance of the client – most obviously by trying to get the client to change his mind and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair…”
It follows that it is far from a tick box exercise for employers to rely on this possible exemption. Each case will turn on its own facts and therefore specialist advice may be just the ticket!
This blog was written by Ben Lindsay, Solicitor at didlaw.
