The Employment Appeal Tribunal recently grappled with this question on appeal after the Employment Tribunal said the firing was fair. What was the final outcome and what are the lessons to be learned? Naomi Flynn reports.
Face Doesn't Fit?
Law stated as at: 28/09/07
The Dilemma
Can you dismiss an employee if his face doesn't fit with one of your clients? This is a common dilemma faced by advertising agencies, who often have a dedicated team of employees working for each client and no alternative work if the client asks for a particular employee to be removed from its account. Luckily for employers, the Employment Appeals Tribunal ("EAT") has recently provided some guidance on this issue in the case of Greenwood v Whiteghyll Plastics Ltd.
Background
All employees have the right not to be unfairly dismissed (although in practice often only employees with over one years' service can exercise this right in an Employment Tribunal). In determining whether or not a dismissal is fair, an Employment Tribunal will consider two factors:
(i) whether the employer has a fair reason for the dismissal; and
(ii) whether a fair procedure has been followed.
A reason is potentially 'fair' if it falls within one of the six permitted reasons set out by employment legislation. These are largely specific reasons for dismissal, such as redundancy or misconduct, but do include a wider provision, being "some other substantial reason ("SOSR") of a kind such as to justify the dismissal". Provided a potentially fair reason is established, the Tribunal will then look at whether the employer's decision to dismiss fell within a band of reasonable responses that a reasonable employer might have adopted.
The case
In the Greenwood v Whitegyll case, the EAT was asked to consider whether an employer, Whitegyll Plastics, had acted fairly when dismissing an employee, Mr Greenwood. The dismissal was made for SOSR, namely a request by a client that Mr Greenwood no longer worked on its team.
Whitegyll Plastics carries out shop fitting. Mr Greenwood was employed by Whitegyll to carry out shop fitting for one of its major customers, Morrison's supermarkets. This job was progressing well until Whitegyll received three complaints from Morrison's in relation to Mr Greenwood in quick succession and asked Whitegyll to remove him from its client account. As Whitegyll was unable to identify any alternative positions for Mr Greenwood, it went through a disciplinary procedure with him, as a result of which he was dismissed.
When the case went to Tribunal, the Tribunal decided that Whitegyll had a fair reason for the dismissal (being SOSR) and had acted fairly in dismissing him. The Tribunal commented that Morrison's was a very important client of Whitegyll's and could dictate who and what was not acceptable to it. As Whitegyll had been unable to identify any alternative work for Mr Greenwood, the Tribunal found that Whitegyll had very little choice other than to dismiss him. The Tribunal took into account the fact that Whitegyll had recently made nine redundancies due to lack of work.
Mr Greenwood appealed against the decision.
The Decision
The EAT allowed the appeal and remitted the case for re-hearing by a different Tribunal. Whilst the EAT accepted that Whitegyll did have a potentially fair reason for dismissing Mr Greenwood, being pressure from Morrison's, the Tribunal should have considered the nature and extent of injustice suffered by Mr Greenwood before deciding whether his dismissal was fair. In doing so the Tribunal should have considered how long Mr Greenwood had been employed, whether his performance was satisfactory and how hard it would be for him to find another job. The EAT said that if Whitegyll found that Mr Greenwood would suffer a serious injustice by being dismissed, it had a duty to consider ways of alleviating the injustice (for example by speaking to Morrison's or looking for alternative work for Mr Greenwood).
The Practical Implications
In practice this means that an advertising agency which is considering dismissing an employee due to a client's demand must first consider the following issues:
- whether the dismissal will result in an injustice to the employee, bearing in mind the employee's length of service, performance record and the difficulties that he/she might face in finding new work;
- whether there are any steps the employer can take to alleviate that injustice, for example discussing with the client whether the issue can be resolved without the need to remove the employee and considering any alternative solutions to dismissal, e.g. swapping the employee with a colleague working on another account.
If dismissal is the only option, the employer must ensure that it follows statutory dismissal procedures when dismissing the employee to avoid the dismissal being automatically unfair.
