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Posted 5 April 2013
by Martin Laver

Dismissals at the request of third parties

It is possible to dismiss an employee fairly, at the request of a third party, often a principal to a contract, even where the employer has not made (and could not have made) a finding of Gross Misconduct.  Such dismissals may be fair for Some Other Substantial Reason (the last of the fair reasons in law for dismissal).

However, such dismissals have always been risky and tribunals will be quick to find unfairness where they can because of the injustice suffered by the employee. In the recent case of Bancroft –v- Interserve the Employment Appeal Tribunal held that such a dismissal was not fair in the particular case.  The reason for the decision was because the employer failed to consider whether the request it received to dismiss the employee was justified.  In the EAT’s words consideration needed to be given to whether the Employer had done everything it could to mitigate the injustice caused to the employee by the third parties’ request.

Accordingly, employers faced with a request from a third party for the removal of an employee must consider the circumstances surrounding that request and look to do all it can (perhaps by looking at relocation or altering duties) to avoid the dismissal or risk an unfair dismissal finding.

 

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About the author

Martin Laver

Partner

Partner in the commercial litigation team specialising in disputed trusts and Wills