- investigate the third party’s complaints against the employee
- approach the third party and make representations on behalf of your employee
- ensure such representations are made to senior management at the third-party organisation
- explore alternative employment arrangements with the employee if the representations made to the client are unsuccessful
- comply with fair procedures and natural justice if it is still necessary to terminate the employee’s employment contract.
Section 6(4) of the Unfair Dismissals Act 1977 (as amended) (the Act) outlines various circumstances in which a dismissal may be justified. The grounds set out in section 6(4) of the Act include but are not limited to capability, competence, conduct, and redundancy.
Employers occasionally find themselves in a difficult position (which falls outside the grounds specified in section 6(4) of the Act) if a customer or client refuses to deal with a particular employee or requests that the employee is removed from their workplace.
If the client’s instructions effectively prohibit the employee from doing the job they are employed to do it may be necessary for the employer to rely on the “some other substantial grounds” defence to justify a dismissal.
The “some other substantial grounds” defence
Section 6(6) of the Act provides that in determining whether a dismissal is fair or not, “it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.” It is the employer therefore that must establish that the dismissal is justified on the basis of some other substantial ground.
Early case law
Early case law demonstrates how employers must first fully investigate and seek to resolve the situation with the third party to successfully make out the “some other substantial grounds” defence.
In Catherine Merrigan v Home Counties Cleaning Ireland Ltd. (UD904/1984), the Employment Appeals Tribunal (EAT) in finding the dismissal to be unfair acknowledged “the dilemma in which the respondent found itself and the strong inducement to terminate the employee’s contract of employment.”
In a dissenting opinion, one member of the EAT noted, “the point in issue is the test of a reasonable employer. The plaintiff, in this case, was faced with an impossible situation…the plaintiff did everything possible to place Mrs. Merrigan in other locations both of which Mrs. Merrigan refused…I believe that in the circumstances, the company had no alternative but to take the action it did.” The dismissal was nonetheless deemed to be unfair in the majority opinion of the EAT which reasoned that “the job of the employee cannot be on the mere whim of a third party.”
In Bernard Sheehan v Keatings Bakery (UD738/89), the EAT, in finding a dismissal to be unfair, noted that “the Respondent attempted to undo the wrong but failed to do so in its dealings with the third party…the Respondent showed good faith and good intentions in the situation. However, the obligations owed by an employer to an employee are very high in these circumstances.” The EAT concluded that where a “grave allegation has been made, steps such as requesting a meeting at the highest level with the third party should have been taken.” The employer must, therefore, demonstrate that it has made extensive efforts to investigate and resolve the issue with the third party, to include approaching the third party’s senior management, before dismissing the employee.
These views were upheld in the decision of Derek Hevey v Provincial Security Services Ltd. (UD447/2011) where the EAT stated that “every case must be considered in the light of its own particular facts…the employer will be expected to show that it has conducted an investigation into the reasons for the refusal of the respondent’s customer to have the claimant work on the site”.
Recent WRC decision
The WRC most recently issued a decision (ADJ-0003959) confirming its position on the “some other substantial grounds” defence. In this particular case, the Complainant was dismissed following complaints made by a number of the employer’s clients.
Upon receiving the complaints, the employer removed the Complainant from the relevant client sites and began disciplinary and investigatory procedures in connection with the complaints. During the course of the investigation, the employer made unsuccessful efforts to have the Complainant reinstated.
The employer also attempted to engage the client at its highest level of management in an effort to resolve the matter. This approach was equally unsuccessful. The employer considered alternative roles and asked the Complainant for suggestions for alternative employment but none were deemed to be suitable.
In the circumstances, the employer was left with no alternative but to terminate the Complainant’s employment. The Complainant received notice as per the contract of employment, was paid all outstanding annual leave and notified of the right of appeal the decision.
The Adjudication Officer (AO) found that the decision to dismiss was fair in the circumstances. The AO noted that the Respondent found itself in an “unenviable situation.” Importantly, it was also noted that the Respondent did “all that was reasonable to address what appears to be an unjust decision by his clients, despite representations and lobbying the Respondent could not reverse their decisions……accordingly, while the clients’ decisions may have been unjust and created an unfortunate set of circumstances I’m satisfied the Respondent had done all that was reasonable to avoid the dismissal, and where the decision to dismiss was not due to any unfair actions or omissions of the Respondent.”
Persuasive UK decision on standards employers must meet to justify dismissal on “some other substantial ground”
Irish employment law tribunals have referred to the UK decision of Henderson v Connect (South Tyneside) Ltd. [2010] IRLR 466 in making determinations. The UK decision provides that “if the employer has done everything it reasonably could do to avoid or mitigate the injustice brought about by the stance of their client and, if that is impossible, by trying to find alternative work for the employee – but has failed, any eventual dismissal will be fair: the outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer. That may seem a harsh conclusion, but it would, of course, be equally harsh for the employer to have to bear the consequences of the client's behaviour.”
Takeaway for employers
Employers can bolster their chances of successfully defending an unfair dismissal claim on “some other substantial ground” if it can be shown that the following steps have been taken following client complaints against an employee:
