It is not uncommon for businesses to come under pressure from a client or customer to remove an employee from their particular project or matter. This can be very difficult for employers to address, the employee may not have done anything substantively wrong, however, losing clients is simply not viable in the current ultra-competitive climate. What can employers do in these circumstances?
Pressure from a third party which leads to the termination of employment can be a fair reason for a dismissal (“some other substantial reason”). The client may have a contractual right to demand the removal of staff and in conjunction with the threat to the employer’s business, Tribunals often recognise that the employer has little choice but to comply with such a demand. The employer may not even have had to investigate the employee to determine whether the demand by the client is reasonable. However, an employer must still act reasonably in responding to this pressure and to take reasonable steps to alleviate any such unfairness.
It would be prudent for employers to make an attempt to change the client’s mind, whilst this may well be a sensitive matter, it will strengthen a defence should an unfair dismissal claim be brought by the employee. It is also worth considering whether the employee could be redeployed elsewhere in the business. Similarly it will often be sensible to conduct a consultation process similar to that which would be followed had the employee been at risk of redundancy so that the possibility of finding an alternative role can be thoroughly explored. It is also worth remembering, should the matter come to dismissal, that the ACAS Code of Practice on Disciplinary and Grievance procedures will apply in these circumstances so the usual procedures involving a dismissal meeting, the right to be accompanied and the right to appeal should be provided for.
Key points if faced with a client’s request to remove a member of staff:
- A Tribunal will want to see evidence of the client’s pressure being exerted – obtain the request in writing and also keep a note of any attempts made to change the client’s mind/explore alternative solutions;
- Actively investigate possibilities for redeployment and discuss these with the employee; and
- Include a clause in the contracts of those whose roles may be at risk of removal warning the employee that a client could demand their redeployment/removal.