Dismissing at the request of a third party - things to consider...
Employers sometimes find themselves in the position where a major client asks that a particular employee no longer work with them. What should an employer do if they have no other work for that particular employee? In the case of Greenwood v Whiteghyll Plastics Ltd, the EAT set out the steps an employer should take if they find themselves in such a position

Whiteghyll carried out shop fitting for, amongst others, Morrisons Supermarkets. Mr Greenwood was employed by Whiteghyll and worked on the Morrisons account. After making three complaints in quick succession about the standard of Mr Greenwood's work, Morrisons told Whiteghyll that Mr Greenwood was no longer acceptable and he was barred from working for it. Whiteghyll subsequently dismissed Mr Greenwood who claimed unfair dismissal.

A tribunal found in favour of Whiteghyll saying that they had no option as Morrisons was such a large client, it could dictate who and what was and was not acceptable to it. They found that Whiteghyll had very little choice other than to dismiss him. On appeal, the EAT found that the Tribunal had not looked at the matter closely enough. In these circumstances, they needed to consider the injustice that Mr Greenwood would suffer as a result of being dismissed. In particular, an employer's assessment of the facts known at the time as to whether dismissal would cause injustice to an employee was a very important factor in deciding whether the employer had acted reasonably or unreasonably. That assessment should include how long the employee had been employed, whether or not the employee's work was satisfactory and the difficulties the employee may face in obtaining new employment.

The EAT found that the Tribunal might have concluded, had it considered these points, that the injustice suffered by Mr Greenwood was so severe that Whiteghyll should have reorganised its business so that Mr Greenwood could swap his work at Morrisons with that of an employee working for another client. The case was therefore remitted to a Tribunal.

Whilst it is clearly possible to dismiss an employee if a third party client/customer refuses to have them on-site, an employer still needs to consider various issues before taking the decision to dismiss. In a large organisation where employees could be swapped over, it will be more difficult to demonstrate that a dismissal is fair. In a smaller organisation where there is only one major client, then it may be unreasonable for an employer to reorganise their business to accommodate one employee.

Light up and you're out
Consider the facts: an employee, who has been with the Company for 12 years is found to have breached the Company's ban on smoking in the workplace - is that sufficient for dismissal?

In Smith v Michelin Tyre plc, Mr Smith had been employed for 12 years. He went for a break in the staff locker room, opened the fire door and sat at the door smoking. He was seen by a supervisor who reported him and he was subsequently suspended, then dismissed for gross misconduct. Under the Company's no smoking policy, smoking was potentially gross misconduct, but in a PowerPoint presentation given to staff, one of the sections of the presentation stated that if a staff member was seen smoking, they should be asked politely to stop and reminded that they were committing an offence which "may" be treated as gross misconduct. The presentation went on to state that if the person refused to stop, the normal disciplinary procedure for gross misconduct should be implemented. The Tribunal and the EAT both found that dismissing Mr Smith for gross misconduct was fair in the circumstances, as it was not outside the band of reasonable responses. Whilst the decision was arguably harsh, it is a reminder that employers should have clear smoking policies in place setting out the consequences of breaching the policy.

Faltering in the first months
Faltering in the first months, the year did not start well for the Regulations. As reported in our August Update Age Concern (operating as Heyday) has led an early challenge, arguing that the Government has not fully implemented the Directive.

Several points have now been referred to the European Court of Justice, which has to consider:

Unfortunately, the case is unlikely to be heard until 2008 and Judgement is not expected before 2009, so what should Tribunals do? The current position is that a Southampton Tribunal refused to stay a private sector claim pending the outcome of the Heyday case and it is anticipated that this view will be followed by other Tribunals. Heyday have however asked the President of the Employment Tribunal Service to make a direction ordering that all forced retirement claims be stayed pending the outcome of the Heyday litigation. If the President agrees to this, the number of claims stayed before a final decision is made by the ECJ could be significant.

Procedure, procedure, procedure...
In Martin v SS Photay and Associates, Mrs Martin was dismissed two days after her 70th birthday, (she was a cleaner at a dental practice) a letter, left in her cleaning cupboard, notified her of her dismissal and stated:

"I am sorry for having to break some bad news to you, due to your age and health problems, you have fallen into the high risk category for health and safety. We cannot allow you to continue cleaning at the practice because of you being high risk".

Clearly, there was no attempt to follow any retirement process and whilst the Tribunal accepted that ensuring the surgery was cleaned to a high standard was a legitimate aim, no medical evidence was sought that she was high risk in terms of health and safety. It was not proportionate to dismiss her without discussing issues concerning her health or work performance. She was awarded £1,030 for injury to feelings.

...and yet more procedures
The case of Holmes v Active Sensors highlights not only the requirements placed on the employer in relation to retirement, but also the technical requirements made of employees.

In this case, Mr Holmes had worked for the Company for 2 years. His contract had no retirement age specified but he was notified in October 2006 that he would be retired the following month on his 65th birthday. He was advised of his right to request to work beyond that age. He made such a request in writing but this was eventually turned down after informal meetings and an informal appeal.

The Tribunal found that there was no age discrimination as the requirements of the retirement process had been met by the employers. His unfair dismissal claim also failed because although his employer had taken his letter as a request for an extension beyond age 65, the Tribunal ruled that it did not satisfy the statutory conditions set out in the Regulations that the employee must specifically state that the request is being made under Paragraph 5(3) of Schedule 6 of the Regulations. This makes clear that, as with the statutory dismissal and disciplinary procedures, the drafting of the Age Regulations is likely to cause both employers and employees some difficulty.

No application, no claim
Mr Clark spotted an advert which referred to a minimum age of 25. He didn't actually apply for the job, but presented an Employment Tribunal claim on the basis of age discrimination. The Tribunal found that the mere placing of the advertisement did not amount to an "arrangement" under the age regulations, Mr Clark needed to have actually applied for the position before he could claim less favourable treatment.

The lesson of the first year: ignore the procedures at your peril.

Seminar: Annual Review
Date: 6th December 2007
This is our very popular free annual update session. More details to follow soon.

For more information about our Employment & Pensions Team please contact Jo Wort at joanna.wort@charlesrussell.co.uk

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