Dando v Britannia Services Group Ltd ET/1610310/09
Date added: 9 November 2010
unfair dismissal | third-party pressure | some other substantial reason | Acas code
Pressure from a third party to dismiss an employee can be a fair basis for dismissal, but employers must - according to this case - comply with the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB) (on the Acas website).
This is the second recent decision in which a tribunal has held that the Acas code applies to dismissals for “some other substantial reason”.
The tribunal’s reasoning on this issue is questionable: the code states that it applies to “disciplinary and grievance” situations, not “issues or problems in the workplace” that could lead to a disciplinary sanction or dismissal.
Until there is appellate authority on this point, employers faced with pressure from a third party to dismiss an employee should follow the Acas code.
Mrs Dando was employed as a cleaner by Britannia Services Group, and worked at an Outfit Clothing Store owned by the Arcadia Group, which was Britannia’s largest customer. On 30 September 2009, Mr Llamosa, one of Britannia’s area managers, visited the store. After a meeting with the store’s assistant manager, Ms Osbourne-Jones, he raised a number of issues with Mrs Dando. These included allegations that the cleaning in the store was poor, and that Mrs Dando had not been working her contracted hours. After the meeting, an upset Mrs Dando told a store employee that she had had “a pissing guts-full of Ms Osbourne-Jones”.
Mrs Dando was unable to continue working and left the store. When she told her husband what had happened, he went to the store and made threatening comments about Ms Osbourne-Jones. Britannia’s evidence at the tribunal hearing was that Mrs Dando was present in the store at this time, although its basis for this was alleged CCTV footage that was never shown to Mrs Dando, and that had been destroyed by the time of the hearing. Mrs Dando denied being present.
On 1 October 2009, Britannia informed Mrs Dando by text message that she was being suspended. Mrs Dando replied by letter denying that she had done anything wrong, but this was not received by Britannia until 5 October 2009. On the same day, Britannia wrote to Mrs Dando again, confirming that the reason for her suspension was a request by Arcadia to remove her from the site, due to concerns about her conduct, namely threatening and abusive behaviour. The letter invited Mrs Dando to a formal meeting to discuss the issues, and confirmed that, if no alternative position could be found for her, the outcome of the meeting could be termination of her employment for “some other substantial reason”, namely third-party pressure. After receiving Mrs Dando’s letter of denial, Britannia did not go back to Arcadia to put her points across.
The formal hearing was conducted by Mr Llamosa, although Mrs Dando’s dismissal letter was signed by Mrs Shaw, one of Britannia’s owners. Mrs Dando’s appeal against her dismissal, which Britannia dealt with in writing, was unsuccessful, and she claimed unfair dismissal.
The tribunal accepted that the reason for Mrs Dando’s dismissal was third-party pressure from Arcadia, and that this fell under the category of “some other substantial reason”. However, the tribunal found that Britannia did not act reasonably in treating this as a sufficient reason for dismissal, on the basis that a reasonable employer would have requested that Arcadia reconsider its stance after receiving Mrs Dando’s denials of the allegations against her.
The tribunal also found that Mrs Dando’s dismissal process was seriously procedurally flawed, particularly with regard to the fact that Britannia failed to show her the CCTV footage, and to hold an appeal hearing. The tribunal held that the Acas code applies to dismissals for “some other substantial” reason where there is third-party pressure, on the basis that the code does not expressly exclude such dismissals from its scope, and that the “purpose of the code is to provide a fair framework when issues or problems arise in the workplace that could lead to action being taken against an employee or indeed dismissal”. The tribunal noted that, although the code does not explicitly require an appeal hearing, it is implicit in a fair procedure that an employee has an opportunity of explaining his or her points of appeal.
Accordingly, the tribunal held that Mrs Dando’s dismissal was unfair.
- Cummings v Siemens Communications Ltd ET/3500013/10 This is another case in which a tribunal held that the Acas code applies to dismissals for “some other substantial reason”, in this instance where an employee was dismissed and offered re-engagement after he would not agree to his employer varying his terms and conditions of employment.
- Henderson v Connect (South Tyneside) Ltd  IRLR 466 EAT In this case, the Employment Appeal Tribunal held that an employer fairly dismissed an employee when a client refused to have him carry out work for it.
- Contract clause on third-party pressure to dismiss Use this model contract clause when drafting an employee's contract or terms and conditions of employment when the employee works on the site of a third party, eg as a security guard, cleaner or caterer.