In Bancroft v Interserve (Facilities Management) Ltd, the employer provided catering services at a bail hostel under a contract with the Home Office's local Probation Trust. The contract allowed the Home Office to require the removal of any contractor staff "whose admission would be in the opinion of the Authority undesirable" and stated that "The opinion of the Authority on whether admission is desirable should be final and binding and the Authority shall be under no obligation to give reasons for its decision."
The claimant had an ongoing difficult relationship with the Probation Trust's hostel manager; the Tribunal found that this originated in the claimant raising genuine and reasonable concerns. Following a complaint by another member of staff, the claimant was suspended and, after a hearing, was given a first and final warning. The manager then wrote to the Home Office saying he did not want the claimant to return, whatever the outcome of the disciplinary proceedings. Following this, the Home Office asked the employer to remove the claimant and he was dismissed, without any efforts being made to seek to persuade the Home Office to change its mind, although the employer had offered him another job which he had rejected.
Although his claim for unfair dismissal was not initially successful, the EAT held that caselaw requires an employer in this situation to do all it can to "mitigate the injustice" caused by the third party's request. The EAT pointed out that the reasons why a third party may enforce a right to remove an employee are "many and varied" and the reasons given may be justified or unlawful; in order to meet the test of acting reasonably (so as to make the dismissal fair) the employer must consider the extent of any injustice to the employee. In this particular case, the Tribunal should have looked at why the employer had not investigated the rights and wrongs of the difficulties between the claimant and the manager. The case was sent back to the Tribunal to decide these issues.