Many employees perform work on behalf of their employers for third party organisations who, for example, buy in their services. Difficulties can arise where the third party refuses (with or without a good reason) to allow an employee to continue to work for it. If no other work is available, can the employer fairly dismiss the employee?
This question arose in the recent case of Henderson v Connect (South Tyneside) Ltd. Mr Henderson was employed by Connect to drive disabled children to school. The service was provided under a contract between Connect and the LA. The contract gave the LA the absolute right to veto the employment of any employee. LA told Connect that it had learned that Mr Henderson had sexually abused two children within his family several years back. Mr Henderson denied that he had done anything wrong, and provided evidence that the police had decided not to prosecute him. Connect were invited to a meeting held by the LA and other professionals which concluded that abuse had occurred and that Mr Henderson could no longer work with children. Mr Henderson was not permitted to attend the meeting, or to put forward any evidence to counter the allegations.
Connect tried to persuade the LA not to exercise their contractual right of veto as it valued Mr Henderson, but the LA refused to allow him to resume his driving duties. There was no other suitable work available and Connect therefore dismissed Mr Henderson who had worked for them, without any problems, for four years. He claimed unfair dismissal. The tribunal was satisfied that the dismissal was for “some other substantial reason”, namely third party pressure and that the decision to dismiss fell within the band of reasonable responses. Mr Henderson appealed.
The EAT accepted that the LA’s conclusions that Mr Henderson was guilty of sexual abuse was “deplorable”, given that he had been given no opportunity to assert his innocence. However, it was not possible for Connect or the tribunal to determine whether Mr Henderson posed a risk to children. The issue was whether it was reasonable for Connect to dismiss him because the LA had reached this view. The EAT found that Connect had done everything that it reasonably could to avoid the injustice brought about by the LA, most obviously by trying to get it to change its mind and when that failed, by trying to find alternative work. The decision to dismiss was therefore fair, and Connect had followed a correct procedure before dismissal.
This case highlights the difficulties for employers whose clients refuse to allow one of their employees to remain on site. This case involved serious allegations of abuse and the employer could have adopted a relatively passive approach (and not challenged the decision) and still dismissed fairly. If the problem had been a clash of personalities, then an employer may have to pull out “all of the stops” before dismissal. It will for example, have to take into account the length of time the employee has been employed, his disciplinary record and the difficulties the employee may face in finding other employment.