In Bancroft v Interserve
(Facilities Management) Ltd, an employer's customer exercised its contractual right to request the employer to remove one of its employees from working at the customer's property. The employee was duly removed – however, the employer could find no alternative employment for him and so he was dismissed.
Was his dismissal fair as being for ‘some other substantial reason’?
In its judgment, the EAT held that whether or not the dismissal was fair depended on whether the employer had taken all steps to seek to mitigate any injustice caused to the employee by the customer’s request. On the facts of this case, it seemed that the employer had accepted the customer’s request that the employee should be removed without any challenge of the reasons for it. If that was the case, the dismissal would be unfair.
Points to note –
Service industry employes should note that such a dismissal may be fair if the employer has done all they reasonably can to mitigate any injustice to the employee and has tried to find him/her alternative work.
Well-drafted contracts between an employer and a customer should require the customer to notify the employer immediately if there are any disciplinary issues with any employee. This provides a mechanism for issues to be dealt with as soon as possible, rather than being allowed to fester – which was what appears to have happened in this case.
It was not an issue in this case, but the EAT commented that, in order to avoid injustice, an employer may be required to take steps to remedy a problem earlier, before anyone has to be dismissed.