Organisations are often put under pressure from clients and customers to remove particular employees from working on their projects, but what options are available to employers if there is no other work available?
Clients may have a specific contractual entitlement under the terms of a service level agreement to order employers to remove staff that they are unhappy with or instead simply rely on a threat to withdraw their custom to achieve the same result. Pressure from a third party which leads to the termination of the employee's employment can be a fair reason for a dismissal (covered by the "some other substantial reason" heading) but an employer must also have acted reasonably in responding to this pressure.
Having the contractual right to demand the removal of staff is not unusual and Tribunals will often recognise that there is very little for employers to do in the circumstances but to bow to the request. Indeed, provided that the request is sufficiently definite and the threat to the employer's business is significant, the reason why the client wants the employee's removal is not especially important. An employer may also not have to investigate the truth of any allegations behind the client's request for removal in order to rely on pressure as the reason for dismissal.
However, possibly because of these factors, Tribunals will expect employers to consider any potential unfairness to the employee should they be dismissed as a result of the client's request and to take reasonable steps to alleviate any such unfairness. Such steps could include attempting to persuade the client to change its mind, as well as considering whether the employee can be redeployed in another part of the business. Whilst attempting to challenge a client's request may be a sensitive and delicate matter, doing so will almost certainly strengthen an employer's defence should an unfair dismissal claim be brought by the employee. Similarly, and especially for larger employers, it will often be sensible to conduct a consultation process akin to that which would be followed had the employee been at risk of redundancy so that the possibility of finding an alternative role can be thoroughly investigated. Such an investigation may involve considering whether it is reasonable to reorganise existing staff in order to enable the employee to remain within the business. As well as these particular considerations it is also worth remembering that the ACAS Code of Practice on Disciplinary and Grievance procedures is likely to apply in these circumstances so the usual procedures involving a dismissal meeting, the right to be accompanied and the right to appeal should be provided for.
So, if you are faced with a client's request to remove a member of staff what should you remember?
- Paper, paper, paper - a Tribunal will want to see evidence of the client's pressure being exerted so try to obtain the request in writing and also keep a note of any attempts made to change the client's mind;
- Actively investigate possibilities for redeployment and discuss these with the employee;
- Consider including a clause in the contracts of those roles who may be at risk of removal requests warning the employee that a client could demand their removal - this may reduce the risk of there being any injustice to the employee as a result.