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Topic: Staff handbook - terms and conditions of employment

third party pressure to dismiss clause
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Third party pressure to dismiss clause

Third party pressure to dismiss clause

Where a client refuses to have one of your employees back on its site, it is possible to dismiss the employee, but you’ll first need to show you did everything you could to change the client’s mind or to secure the employee’s redeployment. Use our third party pressure to dismiss clause in the contracts of employees who are deployed to permanently work on clients’ sites.

Legal position

The upshot of the case law in this area is that where a client refuses to have an employee back on site, you have to show that you’ve done all you can to persuade the client to change their mind and, if that isn’t possible, to effect the employee’s redeployment. Dismissal for “some other substantial reason” has to be the final option when you’re left with no other alternative courses of action. You must show you acted reasonably, balancing your commercial interests against the interests of your employee. The first step is to find out why the client has objected to the employee, to see whether the problem can be resolved. In some instances, the reason may be clear, for example there’s been an incident of misconduct (in which case, you should treat it as a disciplinary issue). In other cases, it may not be clear. Keep a written record of all discussions and confirm everything in writing. Also, ask your client to put in writing precisely what their objections to the employee are. You might not agree with what your client says, but if they’re adamant the employee can’t come back, you’ll be on stronger ground in defending an unfair dismissal claim. If the client is adamant the employee can’t return, consider what injustice might be caused to them if they were to be dismissed. Factors to take into account include length of service, work record and their prospects on the labour market. Explore with the employee all alternatives to dismissal, such as redeployment to another job role or to a different client site.

Contractually covered

Where your third party clients have the contractual right to decide who can work on their sites, it’s preferable for you to then include this as part of the employee’s contract of employment. Use our Third Party Pressure to Dismiss Clause in this scenario but remember you still need to act reasonably in treating third party pressure as a sufficient reason for dismissal, otherwise it will be unfair regardless of the contractual clause.

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