Bancroft v Interserve (Facilities Management) Ltd

Where dismissal follows a third party’s demand that an employee be removed from its premises, fairness requires the employer to take all reasonable steps to avoid or mitigate the resulting injustice. This ordinarily includes seeking to establish the basis and justification for the demand, attempting to secure a change of position where reasonable, and considering suitable alternative employment.

An Employment Tribunal cannot conclude that the employer did all it reasonably could without necessary findings on whether the employer investigated the third party’s reasons for exclusion. Redeployment efforts alone do not answer that question.

The claimant, a chef, was employed to provide catering services at a bail hostel. Following a deteriorating relationship with the hostel manager, the manager asked that he should not return to the premises. The respondent accepted the request, suspended the claimant, attempted redeployment, and dismissed him when he declined an alternative role involving reduced hours and pay.

The Employment Tribunal dismissed the unfair-dismissal claim. It held that the dismissal was for some other substantial reason and that the respondent had done everything reasonably possible to mitigate the injustice caused by the third party’s request. The claimant appealed on the basis that the respondent had not investigated the basis of the request or sought to address the underlying dispute.

1. Appeal allowed. The Employment Tribunal erred in concluding that the respondent had done everything it reasonably could to mitigate the injustice caused by the claimant’s exclusion at a third party’s request. The claim was remitted for findings and a fresh conclusion on fairness.
2. Dismissals following a client’s or other third party’s demand require consideration of the injustice to the employee and of the reasonable steps the employer could take to avoid or mitigate it. Applying Henderson v Connect South Tyneside Ltd [2010] IRLR 468, those steps may include trying to obtain a change in the third party’s position and, if that is not possible, seeking alternative work.
3. The Tribunal had made no finding that the respondent had enquired why the hostel manager required the claimant’s removal, or that it had investigated the merits of the underlying conflict. The disciplinary and grievance processes concerned a different complaint and did not resolve the rights and wrongs of the conflict on which the exclusion request appeared to rest.
4. The respondent’s redeployment efforts and its belief that the third party would be unlikely to change its mind did not supply the missing factual basis. Without findings on the reason for the request and the reasonableness of the respondent’s response to it, the conclusion that the dismissal was fair could not stand.
5. The Tribunal was directed on remittal to determine those matters and then reconsider fairness, with particular reference to Henderson and Dobie v Burns [1984] ICR 812. The court observed, without deciding the point, that a future case might require consideration of whether an employer should have acted earlier to prevent a workplace difficulty becoming insuperable.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the unfair-dismissal claim for further findings and reconsideration of fairness.
• Employment Tribunal: Judgment sent to the parties on 7 December 2011 dismissing the claimant’s claim for unfair dismissal.