Henderson v Connect (South Tyneside) Ltd EAT/0209/09

unfair dismissal | some other substantial reason | third-party pressure to dismiss

The Employment Appeal Tribunal (EAT) has held that an employer fairly dismissed an employee when a client refused to have him carry out work for it.

The employer provides transport services to community and voluntary groups. Mr Henderson was employed as a minibus driver, taking disabled children to school. The service was provided under a contract with South Tyneside Metropolitan Borough Council. Under the terms of the agreement, the council had an absolute right to veto the employment of particular individuals in providing the service. While Mr Henderson had passed the initial criminal record check, the council became aware of allegations that he had been involved in the sexual abuse of his two young nieces. The matter had been investigated by the police, but Mr Henderson had not been prosecuted. The South Tyneside Safeguarding Children Board reviewed the case and came to the conclusion that Mr Henderson could no longer work with children. As there were no other roles for him, the employer decided that it had no option but to dismiss him.

An employment tribunal found that the dismissal was fair. The employer had dismissed Mr Henderson because of third-party pressure, which comes within the category of "some other substantial reason" and is a potentially fair reason for dismissal. It was reasonable for the employer to dismiss Mr Henderson as the council was allowed to veto employees working with children and the employer had no choice in this case. It had done everything that it reasonably could in the circumstances, appealing the decision and looking into Mr Henderson's situation.

The EAT agreed. In cases of third-party pressure to dismiss, the client is under no obligation to behave fairly towards the employee and, if it does act unfairly, this does not necessarily make it unfair for the employer to dismiss the employee. If the employer has done everything that it reasonably can to avoid or mitigate the injustice brought about by the client's stance – for example, by trying to get the client to change its mind and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair. The outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer.

Case transcript of Henderson v Connect (South Tyneside) Ltd (Microsoft Word format, 86K) (on the EAT website)

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