Defending a relocation application – what to consider?
The answer is to exercise caution and adopt a fair procedure in light of the potential injustice to the employee. You might imagine that the key issue would be whether the third party was acting reasonably on good grounds in seeking the employee’s dismissal. In fact, case law shows that the employer does not necessarily need to establish any culpability on the part of the employee. They may not agree with the dismissal request or demand. Rather, the starting point is how serious the risk is to the employer if they do not bow to the dismissal demand.
So if (for example) a major client is seriously threatening to take their business elsewhere unless an employee is dismissed – or indeed is exercising a contractual right to ensure that an employee to whom they object is excluded from their premises or taken off their account – then potentially this can form the basis of a fair and lawful dismissal.
However, the employer will need good evidence showing that they really were under serious pressure to dismiss the employee, and that they acted reasonably in all the circumstances. The simple fact that the employer was facing third party pressure, no matter how serious, will not justify dismissal unless the employer considered whether the employee was facing injustice in light of the third party pressure and, if so, took all reasonable steps to avoid or mitigate it. Accordingly the employer should seek to question the third party, establish the basis of their objection to the employee’s continued employment, and challenge their stance if appropriate. Consideration of any suitable alternative employment can also be important.
If a third party such as a client in an outsourcing situation has the contractual entitlement to determine or significantly influence the continued employment of an employer’s employees, then the employer should ensure that they are on notice of this in advance. The inclusion of wording in the employment contract or handbook of the possibility of dismissal at a third party’s behest can help to defend a claim.
When the relevant third party pressure is exercised on the breakdown of an employee’s working relationship with a member of the third party’s staff, the tribunal may consider whether the employer ought reasonably to have taken steps sooner to prevent matters coming to a head. The same point can apply where the pressure to dismiss comes from within the employer’s own organisation, from the employee’s colleagues. Particular problems, outside the scope of this blog, arise where the breakdown of working relationships is connected with conflicting beliefs or characteristics protected under discrimination law, or result in the threat of industrial action unless a particular employee is dismissed. Similarly, employers need to take particular care when faced with unproven allegations from a third party, such as the police, in light of which they feel compelled to dismiss in order to minimise the risk of reputational damage.
As will be clear from the above comments, third party pressure to dismiss can arise from numerous quarters and occur in a wide range of situations, with the cases being fact sensitive. However, the closer you look at the cases, the more apparent it becomes that the mere fact of serious third party pressure is only the beginning when it comes to establishing a fair dismissal.
Going back to the Kuenssberg case, it is worth recalling that there is no suggestion that her position is under any real threat in light of the petitioners’ demands (and many would say that if a political journalist does not encounter the ire of politicians and their supporters from time to time, then they are not being robust enough in challenging them). Further, in the (probably highly unlikely) event that her position was under any threat, it appears the proper basis for this would concern her conduct (rather than the third party pressure of what is ultimately a relatively small group of licence payers). Her case is, however, interesting as an example of the very broad range of situations in which third party pressure to dismiss an employee can arise, and the need (when an employer does feel compelled to take action in response) to exercise caution rather than rush to dismiss without proper procedure.
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