Our customer wants us to sack someone; what should we do?
As an employer, you may find yourself in a situation where a third party, such as a customer or supplier, pressures you to remove an employee from working with them.
This places you in a tricky situation. What would you do if a valued key customer had a disagreement with a member of your staff working on its site and threatened to cancel its contract with you? Would you dismiss them?
What if you felt the disagreement was the customer’s fault? Could you be facing an employment tribunal claim if you dismissed your employee?
‘Some other substantial reason’ as reason for dismissal
In 1978, the Employment Appeal Tribunal confirmed that an employee’s dismissal could be fair where an employer bows to the demands made by a valued customer seeking their removal, irrespective of motive.
The fair reason for dismissal would be “some other substantial reason”. This is a fair reason for dismissal which does not fall within any other category, such as redundancy, capability, or misconduct.
Circumstantial considerations
The reason for the third party’s request is largely irrelevant. Typical reasons might include disagreements over the employee’s performance and alleged misconduct.
Although the third party’s reasons are largely irrelevant, a tribunal will consider the following:
- How important the business of the third party is to the employer.
- How serious or definite the threat by the third party is.
Requirement for fairness
There are several factors an employer must consider before dismissing an employee under these circumstances:
- Does the injustice to the employee outweigh the risk of losing the customer? For example, how long has the employee been employed? Is the employee’s work satisfactory? How difficult will it be for the employee to find new employment?
- Can the injustice to the employee be alleviated? For example, have attempts been made to resolve the situation with the third party? Is there another site upon which the employee can work? Can the employee be redeployed elsewhere within the organisation?
Comment and advice to employers
Whilst it is possible to dismiss an employee fairly under these circumstances, it’s important to not ‘jump the gun’ and to take time to:
- Investigate the situation as far as is reasonably possible.
- Consider the injustice to the employee and whether any alternatives are available to avoid dismissing the employee.
- Document the outcome of the investigation, the importance of the third party’s business, why their threat is considered serious/definite, and your consideration of the injustice to the employee/alternatives.
- If dismissing the employee is the only option, conduct a fair dismissal procedure.
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