In this month’s article Flora Mewies of Ward Hadaway looks at the conflict which can arise when a client raises issue with a temporary worker placed with them and how you can minimise the legal risk as an employer and minimise the commercial risk of aggravating the client.
Conflict situation
When you are alerted to problems with a temp inside the client’s organisation, the first instinct is of course to placate the client and protect the commercial relationship. In some situations this can be to the detriment of your employment relationship with the temp in question and could expose your business to legal claims.
In extreme circumstances a situation may arise where the client is making allegations and requires you to dismiss this individual. Often the client is unprepared to provide sufficient information to allow a disciplinary process to take place, leaving you in a position where taking action fairly is tricky.
Some Other Substantial Reason dismissals
An employee may be dismissed fairly for ‘some other substantial reason’ (“SOSR”). The reason relied upon for dismissal must be substantial and it is for you as the employer to show that that is the sole or principal reason for the dismissal and that the decision to dismiss for SOSR was reasonable in all the circumstances.
Even if you have a fair reason to dismiss, it is necessary to follow a fair process leading to termination of employment. There are a number of cases where the reason for dismissal following a third party request have been found to be unfair, not because of SOSR but because of the conduct of the employer in the dismissal process.
In the case of Petrofac Offshore Management v Olley, a party to an outsourcing agreement requested that the employer remove three of its six employees from an oil rig. A contract between the employer and the oil rig operator gave them power to make such requests but only in specified circumstances. It was held in this case that the dismissals were substantively unfair as the employer had not made any attempt to persuade the operator to change its mind or redeploy the employees. Further, the Employment Appeal Tribunal noted that the contractual provisions gave no absolute right to require removal of personnel in any event.
In contrast, in Dobbie v Burns International Services, a local council had requested an airport dismiss a security guard who had a conflict with a senior council employee. The dismissal was held to be fair. The Council had a contract with the airport in which it had the right to dismiss security guards who were provided by the employer.
Also in the case of Greenwood v Whiteghyll Plastics Limited it was found that the dismissal of Greenwood was unfair as there was no evidence to show that the employer had considered the injustice of dismissing the employee or the extent of this injustice. The employer had also made no attempt to redeploy Greenwood to another role following the request of his dismissal from the client.
Personality clashes can amount to SOSR. If this is the reason being put forward for the dismissal then the conflict would have to have been causing substantial disruption to the client’s business.
In Perkin v St Georges Healthcare NHS Trust the Court of Appeal held that dismissing an employee because of his difficult personality cannot itself amount to SOSR, although the ways in which the employee’s personality manifested itself through behaviour with other employees, clients and colleagues could do so.
If personality is a reason being given for a request to dismiss an employee, you should still take reasonable steps to solve the problem and resort to dismissal as a last option.
Minimising employment issues
Where a client is requesting that your employee is dismissed, as a minimum, the following steps are recommended:
- Hold a formal meeting with the employee to alert them to the issues raised by the client. Allow the employee to put forward their side of the story and explain to them that if the client does not change its mind, it will be necessary for you to look for alternative placements and if there are none available that their employment may be terminated.
- Document your efforts to reason with the client (if you think appropriate) and look for alternative options to dismissal.
- Hold a further meeting with the employee informing them of the steps taken and the need to terminate their employment. For SOSR dismissals, termination should be on notice and the employee should receive their notice pay.
Minimising commercial issues
In the terms and conditions governing your relationship with the client, it is recommended that you have:
- A detailed termination clause giving the client authority to request the dismissal of a temp placed by you and requiring the client to provide evidence in support of this request.
- An indemnity from the client to reimburse any legal costs and award made against you in respect of a claim brought by any employee dismissed at the client’s request.
Ward Hadaway
is one of the UK’s Top 100 law firms with offices in Leeds, Manchester and Newcastle. We are a Northern law firm for national business. Led by experienced experts, our specialist recruitment services team offers commercially-focused legal advice on the whole range of issues encountered by businesses operating in the sector across the UK and overseas, from HR and employment to regulatory and corporate matters.
