3rd party pressure: a fair reason for dismissal?

The Employment Rights Act 1996 recognises five potentially fair reasons for dismissal: conduct, capability, redundancy, illegality and ‘some other substantial reason’. When faced with an ordinary unfair dismissal claim, Employers have to set out which of the five reasons they rely upon as the reason for dismissal. They must then show that dismissal for that reason was fair in all the circumstances.

‘Some other substantial reason’ (‘SOSR’) mops up situations which do not fall neatly into any of the other four categories. It has developed, over the years, through case law.

One of the areas which can be covered by SOSR is where a third party applies pressure to the employer to dismiss the employee for some reason. This often happens where a business’s employees are deployed to client sites. If the client takes exception to an employee and asks for them to be removed, then the employer can potentially rely on SOSR to dismiss. However, this principal does not give employers a ‘green light’ to jump on any client complaint and dismiss the employee, as the recent employment tribunal case of Darling v ICTS demonstrates. 

In this case, Mr Darling was employed by ICTS as a security supervisor. He worked at a hospital, who engaged ICTS as their security provider. Mr Darling was arrested for alleged misuse of CCTV footage. A police investigation was initiated which was likely to take six to 12 months. The hospital told ICTS that Mr Darling could not return to site whilst he was under police investigation. ICTS dismissed Mr Darling, relying on SOSR (third party pressure) as the reason. The employment tribunal held that he had been unfairly dismissed. Whilst third party pressure can amount to ‘some other substantial reason’ in certain circumstances, ICTS had been wrong to jump directly from the client’s refusal to allow Mr Darling on site to a decision of dismissal. ICTS had lots of other contracts in place with other clients. It should have taken pro-active steps to consider alternative employment before deciding to dismiss. Mr Darling had been directed to ICTS’s job vacancy site, but the tribunal said that this was not sufficient. There was a “lack of action” by ICTS on this.

This case is an important reminder that the existence of third party pressure to dismiss does not give an employer the green light to do so. Alternatives should be pro-actively considered before a decision to dismiss is taken. 

Speak to Jon Dunkley

Jon is a Partner at Wollens and can advise you. Contact Jon via email jon.dunkley@wollens.co.uk or call 01271 341021.

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