Dismissal fair if steps are taken to mitigate
injustice caused by third party pressure
In
Henderson v Connect (South Tyneside) Ltd, the EAT held that where an end-user
client refuses to have a particular contractor’s employee working in their
organisation, then a dismissal will be fair as long as the employer has done
everything that he reasonably can to avoid, or mitigate, the injustice brought
about by the client’s stance, but has failed.
Mr
Henderson was a minibus driver working with disabled children, as part of a
service provided under a contract between Connect and South Tyneside Council. The
contract provided the Council with the absolute right to veto the employment of
any individual to provide the service.
Allegations
were made that Mr Henderson had sexually abused two of his nieces. The police
did not prosecute Mr Henderson, who protested his innocence throughout, but the
Council decided that abuse had taken place and Mr Henderson could no longer
work with children. Connect suspended Mr Henderson while it tried to persuade
the Council to reconsider. When this failed, since it had no other roles
available for him, it decided that it had no choice but to dismiss him.
An
employment tribunal concluded that the dismissal was fair, for “some other
substantial reason”, due to third party pressure. Connect had done all
they could to support Mr Henderson in the circumstances, and dismissal was
within the range of reasonable responses. The EAT agreed. If the employer has
done everything that he reasonably can to avoid or mitigate the injustice
brought about by the stance of the client – most obviously, by trying to get
the client to change his mind and, if that is impossible, by trying to find
alternative work for the employee – but has failed, any eventual dismissal will
be fair: the outcome may remain unjust, but that is not the result of any
unreasonableness on the part of the employer.
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