It has recently been ruled that the dismissal of the Director of Children’s Services for the London Borough of Haringey was unfair, because the dismissal relied on unlawful directions from the then Secretary of State for Children and Families. The Government may appeal the decision. Most people will remember the ‘Baby P’ case that led to Ms Shoesmith’s dismissal. Baby P died as a result of abuse. Social workers had made visits to the home, and there was a huge public reaction to the Baby P’s death, along with significant adverse media coverage.
Sometimes, pressure from an important third party can be a fair reason to dismiss. These are ‘some other substantial reason’ dismissals and often happen where a client needs to maintain some control over a service provider’s staff. Sometimes the client even has the right to insist on dismissal, or the right to chose which of the employer’s staff work with the client, written into the contract for provision of services. But even in these situations, it is vital to follow a fair and correct process. Ideally, an employer also needs to have something in writing from the third party to show the pressure to dismiss, and the reasons for the dismissal. And as shown by the Shoesmith case, the third party needs to be giving lawful directions. For example, pressure to dismiss an employee because of a protected characteristic such as age, race or sexual orientation will nearly always be unlawful.
So what should an employer do if it finds itself in the unfortunate situation of having to dismiss an employee because of third party pressure? If the request for the dismissal is because of the employee’s capability or conduct the employer should carry out an appropriate investigation and procedure in line with the Acas Code on Disciplinary and Grievance Procedures. If it isn’t within the reasonable range of responses to dismiss, the employer could try and reach a compromise with the third party on an appropriate sanction. Alternatively, it might be possible for the employer to move the employee to different part of the business to deal with the third party concerns without dismissing the employee.
If the third party is still insisting on dismissal and the employer feels they have no choice (for example, because the third party will withdraw their business and this will threaten the employer’s continued existence) then the dismissal may potentially be fair. But employers need to be incredibly careful in these situations and should always seek appropriate advice and make sure they follow appropriate and fair procedures.
This information is believed to be correct as at June 2011. It is not a substitute for legal advice and no liability attaches to its use. Specific and personal legal advice should be taken on any individual matter.
Lucinda Bromfield, Employment Specialist, Bevans Solicitors
Lucinda Bromfield is an employment specialist at Bevans, advising on all aspects of employment law and alternative dispute resolution. Before becoming a solicitor she had experience of working in compliance and HR for large private and public sector organizations. She is a qualified mediator and has a particular interest in the role of effective communication and HR in building sustainable, profitable businesses.
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