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Request by third party to dismiss - fair or unfair?

Posted on 10th December 2009
Case law

A dismissal of an employee at the request of a third party was fair as the employer had acted reasonably and was able to show that it had done what it could to persuade the third party to change its position.

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Henderson v Connect [2009]

Background

The employee, Mr Henderson, was employed by Connect as a bus driver under a school contract with the local council. Under the terms of the contract the council could veto particular employees. The council became aware that Mr Henderson had been investigated by the police for sexual abuse. Mr Henderson was not prosecuted.

The council convened a meeting with Connect and the police to discuss the case. Mr Henderson was not offered the opportunity to attend. The meeting concluded that Mr Henderson had committed the abuse and he was suspended. Connect made efforts to persuade the council not to veto Mr Henderson but was unsuccessful and his employment was terminated.

The decision

The Employment Appeal Tribunal upheld the tribunal's decision that the dismissal was fair. While Mr Henderson had not attended the meeting convened by the council this did not mean his dismissal was unfair as the council was not his employer and they were not obliged to offer him the opportunity to attend. In relation to Connect, his employer, they had acted reasonably and done everything they could, including considering alternative employment, to try to avoid the dismissal of Mr Henderson.

In practice

Connect was clearly in a very difficult position. This case emphasises that an employer may rely upon the insistence of a third party's request to dismiss an employee. Such a dismissal will be potentially fair for some other substantial reason. The reasonableness (or otherwise) of the third party's position and procedures are not relevant. What the employer must be sure to do is act reasonably and explore all alternatives before making the decision to dismiss. In particular for the dismissal to be fair, the employer must show that it has done everything that it can to avoid or mitigate any injustice against the employee.

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