Veitch Penny LLP - Exeter | Crediton, Devon

Case

Henderson –v- Connect (South Tyneside) Ltd
Employment Appeal Tribunal – 2 September 2009

Issues

(1) Unfair dismissal
(2) “Some other substantial reason”
(3) Third party pressure

Facts

The employer, Connect (South Tyneside) Ltd (“Connect”) provided transport services to the community and to voluntary groups. Mr Henderson was employed as a mini bus driver taking disabled children to school under a contract with South Tyneside Metropolitan Borough Council (“the Council”).

The terms of the agreement between Connect and the Council allowed the Council to veto the employment of those involved in providing this service.

Mr Henderson’s original CRB check had been clear. However, the Council became aware of allegations that he had been investigated by the police following allegations that he had abused his two young nieces. There had been an investigation but no prosecution had taken place.

The Council’s Safeguarding Children Board viewed the case and concluded that Mr Henderson should no longer drive the minibus.

As there were no other roles for him within Connect, Connect decided it had no option but to dismiss him.

The original Employment Tribunal found that the dismissal was fair on grounds of third party pressure which came within the catch-all category of “some other substantial reason”. It found that it was reasonable for the employer to dismiss Mr Henderson because the terms of the agreement with the Council allowed the Council to veto employees working with children. It noted that the employer had done everything it reasonably could in the circumstances appealing the decision and looking into Mr Henderson’s situation.

The matter was appealed to the Employment Appeal Tribunal.

Decision

The Employment Appeal Tribunal (EAT) agreed with the Tribunal’s decision. The client in cases of third party pressure has no obligation to behave fairly towards the employee. Even if the client acts unfairly, it does not necessarily make it unfair for the employer to dismiss the employee.

Comments

The important point to note about this case is that the EAT said that following the wording of the legislation, if the employer had done everything it reasonably could in order to avoid or mitigate the injustice brought about by the third party pressure, then a subsequent dismissal would be fair.

In this case, Connect satisfied this test. But what is reasonable? It is by no means clear. Arguably, the employer should actively look into the ultimatum the client’s is applying. Does it add up? Can the employer do anything to persuade the client to change its mind? Is there is alternative work available for the employee? Could the work be reorganised in some way?

Rachel Billen – Associate Solicitor, Employment Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.