The ‘very important factor’ of any injustice to the employee must be considered when dismissing him at the request of a customer.
A dismissal may be fair for ‘some other substantial reason justifying dismissal’ but the employer must still satisfy any tribunal that it was reasonable for it to treat the reason given as a sufficient reason for dismissal. This falls to be determined ‘in accordance with equity and the substantial merits of the case’. It is well-established in case law that, where a commercial customer requires a supplier to dismiss an employee, the dismissal may be fair as being for ‘some other substantial reason’ - but not necessarily.
In the recent case of Greenwood v Whiteghyll Plastics the employer carried out shop fittings for Morrisons supermarkets. The employee was engaged to set up new lines in the supermarkets and worked though the night so that new set-ups could be ready when the stores opened on the next day. The employer received three complaints from Morrisons in quick succession about the standard of the employee’s work. This was despite the fact that no complaint had been made directly to the employee by the Morrisons duty manager who signed him off every morning. Morrisons said that he was no longer acceptable to them and he was barred from working on Morrisons’ sites. The employer had no other site to which he could be transferred and so he was made redundant.
He claimed unfair dismissal but the tribunal decided that, because Morrisons was a very large customer and had the ‘whip hand’, the employer had very little choice in the matter other than to dismiss the employee unless there was alternative work for him, which there was not, and so the dismissal was fair.
The EAT has now said that the tribunal was too hasty in jumping to this conclusion. In the case of Dobie v Burns, decided by the Court of Appeal in 1984, the court said that ‘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 any injustice to the employee and the extent of that injustice’. The case of Greenwood has been remitted to the employment tribunal to consider this issue.
Point to note –
- It is not enough for the employer to rely on its customer’s judgment alone. It must make its own decision as to any injustice to its employee. However, the EAT acknowledges that, having done that, it may be that it will make no difference to the decision of a reasonable employer that the employee must be dismissed.