Many contracts for the provision of services include a term allowing the customer to require the supplier to remove from its premises or its account any person employed by the supplier whom the customer no longer likes the look of.   Often that clause imposes no obligation on the customer to provide (let along prove) the reasons for that requirement.  That can mean that the real reason may be of varying degrees of substance or indeed of lawfulness.  It could be a justified response to poor performance by the employee or it could be the product of personal caprice, malice or discrimination against him.  Either way, the supplying employer has to deal with the fall-out and do something with the rejected employee.  

A new EAT case, Bancroft –v- Interserve, sheds some useful light on your obligations as supplier and employer in those circumstances.  Bancroft worked for Interserve and was supplied as a chef to the Home Office.  In the course of his duties and over a period of time (and to Interserve’s knowledge) he fell out with two Home Office employees and that removal clause was triggered.  Bancroft was found to be to blame for the falling-out to the extent only of a written warning from Interserve, i.e. not to a level sufficient to justify his dismissal on conduct grounds. However, he was dismissed anyway as Interserve was unable to find anything else to do with him after he was elbowed off the Home Office account.  Fair dismissal or not?  

The Employment Tribunal said that it was.  It followed a 2010 case, Henderson –v- Connect South Tyneside Limited, where in relation to dismissals caused by third parties the EAT said: “If the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client, most obviously by trying to get the client to change his 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”.  

The Tribunal said that Interserve had concluded reasonably that it could not ask the Home Office to change its mind and it had tried but been unable to offer Bancroft a suitable redeployment.  According to the Henderson test, that was all Interserve had to show.  The EAT in Bancroft disagreed.  The supplier employer needed to look at (or at least to try to look at or even consider looking at) the background to the falling-out.  Until it could do so, the employer could not tell what it could reasonably do “to avoid or mitigate the injustice brought about by the stance of the client”.  Therefore it would fail the Henderson test.  

So where a client requires the removal of one of your employees from its account or premises, you should be seen to have formed the best view you can of the objective merits of that requirement.  The client may not co-operate in this or you might be sure that even if the fault lies entirely with the client or one of its staff, it will still not have your employee back, but you cannot know for sure unless you try and are seen to do so.   

It was argued for Bancroft that Interserve’s duties to take steps to mitigate or avoid the injustice to him went so far as to require it to intervene at an early stage in the falling-out process (to act as mediator or to force a solution upon both its own employee and those of the Home Office) before the contractual removal trigger was pulled in the first place.  The EAT felt on the facts that this was not required here, but expressly left the question open to be decided in some future case.  If you are aware of tensions between your staff and those of the customer, therefore, it may pay to seek an early meeting with the customer before it does something potentially irreversible in relation to your employee.