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Third party pressure
[ch 10: pages 287-288]Third-party pressure can sometimes justify a fair dismissal, especially where the third party was the employer’s only or main client (Martin v JF X-Press EAT/0010/04, Greenwood v Whiteghyll Plastics Limited [2007] AER 111). However, dismissal is unlikely to be reasonable unless the employer has taken all reasonable steps to avoid or mitigate the effects of the client’s demand, most obviously by trying to persuade the client to change its mind and if that fails, by trying to find alternative work (Henderson v Connect South Tyneside Limited [2010] IRLR 468). Here is a shocking example which also provides another illustration of the inablility of conventional employment laws to respond to new, fragmented employment structures:
Mr Bancroft worked as a chef for outsourcing company, Interserve. Interserve held the Home Office contract to supply the catering for a bail hostel run by a voluntary organisation. Bancroft raised health and safety concerns about the running of the kitchen, upsetting the hostel manager who was an employee of the voluntary organisation. When another member of staff complained about Bancroft’s use of language in a dispute over some margarine, Bancroft received a Final Warning.
Mid-way through the disciplinary process for the Final Warning, the hostel manager contacted the Home Office and said he no longer wanted Bancroft working at the hostel. He asked the Home Office to enforce a term in the Interserve service agreement entitling the Home Office to demand the removal of any Interserve employee for no reason and without appeal.
In response, the Home Office wrote to Interserve instructing it to find a “permanent solution”. That solution was Bancroft’s removal from his hostel job. He was offered another post 30 miles away for less money which he rejected so he was dismissed.
The EAT accepted that a dismissal caused by pressure from a third party client can be fair but said that an employer under pressure from a third party to remove an employee from site must at least investigate the circumstances and intercede to try to change the client’s mind. This had not happened here. However, all Interserve had to do in this case to make the dismissal fair was to ask the Home Office to reconsider.
The EAT criticised Interserve for failing to intervene earlier to try to resolve Bancroft’s relationship difficulties with the hostel manager.
Bancroft v Interserve Facilities Management Limited [2012] UKEAT/0329/1312