Greenwood v Whiteghyll Plastics (Employment Appeal Tribunal)
In this case the Claimant, Mr Greenwood, was dismissed because a major customer of the Respondent, Whiteghyll Plastics, said that they no longer wanted Mr Greenwood working on their premises.
Whiteghyll carried out shop fitting at various stores such at Morisson’s, Ann Summers and British Home Stores. Mr Greenwood had been involved in the conversion of Safeway stores to Morrison’s but this work ended at the turn of 2006. At this point Mr Greenwood was assigned to promotions roll-outs which entailed working throughout the night for a new line to be launched the following day.
In July 2006 Whitghyll received three complaints about Mr Greenwood’s standard of work. As a consequence Whiteghyll told Mr Greenwood that Morisson’s said he was no longer an acceptable representative and that he was barred from working in their stores.
The Employment Tribunal found that Morrison’s had “the whip hand” as they were a much larger company and could dictate what was and was not acceptable. As such, they held that Whiteghyll “had very little choice in the matter, it seems to us, other than to dismiss the claimant unless there was alternative work for him”, which, despite enquiries, it was found that there was not. In fact Whiteghyll had to lay off nine people shortly before the complaints about Mr Greenwood were received.
Mr Greenwood’s appeal contended that the Employment Tribunal failed to consider the issue of injustice and that it did not consider the significance of the injustice caused to the Mr Greenwood. He referred to the 1984 Court of Appeal case of Dobie v Burns, where a security guard was dismissed after representations from an airport operator to the employer. In that case Master of the Rolls, Sir John Donaldson stated:
“In deciding whether the employer acted reasonably or unreasonably, a very important factor of which he has to take account, on the facts known to him at that time, is whether there will or will not be injustice to the employee and the extent of that injustice. For example, he will clearly have to take account of the length of time during which the employee has been employed by him, the satisfactoriness or otherwise of the employee’s service, the difficulties which may face the employee in obtaining other employment, and matters of that sort. None of these is decisive, but they are all matters of which he has to take account and they are all matters which affect the justice or injustice to the employee of being dismissed.”
The Employment Appeal Tribunal found no evidence that the Employment Tribunal had considered this point. Further, there was nothing to show that Whiteghyll had considered the injustice to Mr Greenwood in deciding to dismiss him. The Employment Appeal Tribunal stated that it might well have been that if the injustice to Mr Greenwood had been considered it would have made no difference to the decision of a reasonable employer. However, the lack of such consideration was key and the case was remitted to another Employment Tribunal in order that the issue of injustice could be addressed.
This case demonstrates the need for employers to act very carefully when looking to dismiss an employee at the behest of a third party. Any possible injustice must be addressed. Best practice involves the employer investigating ways of settling differences with the third party without dismissing as well as looking at alternative roles if a resolution of these differences is not possible. As always, documenting such efforts will be all important.