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1 February 2013 0 Comments
Posted in Employment, Opinion

Dismissal by request of third party

Author headshot image Posted by , Partner

Many employers enter into contracts with third parties, their clients, for the provision of services. Sometimes the contract between the client and the employer contains a provision requiring the employer to remove one or more member of the employer’s employees for a given reason – or, sometimes, for no reason at all. If the employer is unable to find any other work for the employee, is a dismissal in these circumstances fair or unfair? The EAT has given an interesting judgment on just this issue :-

In Bancroft v Interserve, the EAT has held that it is unreasonable for an employer to dismiss an employee on the request of a third party without considering first whether that request is justified.

The Respondent had a contract with the Home Office for the provision of a catering service to a bail hostel. One of the terms of the contract was that the Home Office could require the removal of any of the contractor’s staff “whose admission would be undesirable” without giving any reasons. When the Claimant and the Manager of the bail hostel fell out, the Home Office wrote to the Respondent asking for the Claimant to be removed. He was subsequently dismissed without any enquiry into the reason why the request was made. The Tribunal held that his dismissal was fair.

However the EAT held that it was important to consider whether or not an injustice had been done to the employee, and the extent of that injustice, in  deciding whether or not the dismissal was fair. The Tribunal had not enquired into the circumstances between the Claimant and the bail hostel Manager and neither had the employer. The EAT held that the Tribunal had not looked into whether the Respondent had done everything it could to mitigate the injustice caused by the request from the Home Office which would require the Claimant’s dismissal. The EAT determined that the decision could not stand and remitted the case to a fresh Tribunal.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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