When faced with pressure from a client or customer to dismiss an employee, it can be very difficult for employers to balance commercial realities with the need to treat employees fairly. In Bancroft v Interserve (Facilities Management) Limited the EAT confirmed that although it is potentially fair to rely on a third party's request to dismiss an employee, the employer must act reasonably when doing so.
Mr Bancroft was supplied by Interserve to work as a chef at a bail hostel under a contract with the Home Office. The contract stated that the Home Office could require the removal of contractor staff without giving reasons. Difficulties arose in the working relationship between Mr Bancroft and the hostel manager which led to Mr Bancroft being given a first and final warning by Interserve. Mr Bancroft in turn raised a grievance about the way matters had been handled. The hostel manager simultaneously wrote to the Home Office saying that he did not want Mr Bancroft to return to the hostel and the Home Office then asked for Mr Bancroft to be replaced. Interserve complied with this request without protest. Following an unsuccessful attempt at redeployment, Mr Bancroft was dismissed.
The Employment Tribunal held that the dismissal was fair since Mr Bancroft had been dismissed for "some other substantial reason", namely the third party pressure for him to be replaced. However, the EAT found that the Tribunal had failed to examine fully whether Interserve had taken all necessary steps to mitigate the injustice caused to the employee in these circumstances. For example, it was not clear whether Interserve had looked at the background to the hostel manager's request to replace him. The case was sent back to the Tribunal to make the necessary findings of fact and reconsider the issue of fairness.
This case confirms that although employers can rely on pressure from a third party to dismiss an employee, it will probably be unfair to do so without carrying out a proper investigation, looking into the reasons for the request, and considering the degree of injustice caused to the employee. Alternatives to dismissal, such as redeployment, should also be considered if appropriate.
Law firm's mandatory retirement age of 65 was justified
The long-running case of Seldon v Clarkson Wright & Jakes has finally reached its conclusion. Mr Seldon, a partner in a firm of solicitors, brought an age discrimination claim against his firm when he was forced to retire at 65.
After a succession of appeals, in April 2012 the Supreme Court held that the law firm had identified legitimate aims which could potentially justify the compulsory retirement of Mr Seldon from the partnership at 65, namely, staff retention, workforce planning and dignity. The case was sent back to the Employment Tribunal to consider whether the firm's selected age was a proportionate means of achieving those aims.
The Employment Tribunal has now ruled that the firm was justified in forcing Mr Seldon to retire at 65. It should be noted that this decision is based on facts arising in 2006 and concerned career progression in the particular context of a partnership. In addition, all partners had signed up to a deed which included a retirement age of 65. The Tribunal's ruling may have been different if it had been based on more recent facts or a different employment context, given that the default retirement age has now been abolished. It will generally be much harder now to justify a mandatory retirement age, although this will depend on all relevant circumstances including the particular role and industry in question.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
