3rd party pressure: Fair reason for dismissal?

The Employment Rights Act 1996 recognises five potentially fair reasons for dismissal:

1. Conduct
2. Capability
3. Redundancy
4. Illegality
5. SOSR  

When faced with an ordinary unfair dismissal claim, you must set out which of these 5 reasons you will cite as the reason for dismissal. You must then show that the dismissal for that reason was fair in all the circumstances.

What’s the SOSR or ‘Some other substantial reason’ category?

‘Some other substantial reason’ (‘SOSR’) mops up situations which don’t fit neatly into any of the other four categories. It’s developed, over the years, through case law.

One of the areas which can be covered by SOSR is where a third party applies pressure to the employer to dismiss the employee for some reason.

Third party pressure to dismiss

This can often arise when employees are deployed to client sites. If the client takes exception to an employee and asks for them to be removed, then you, as their employer, can potentially rely on SOSR to dismiss them. However, this principal doesn’t give you a ‘green light’ to jump on any client complaint and dismiss the employee, as the recent employment tribunal case of Darling v ICTS demonstrates.

Darling v ICTS

In the case of Darling v ICTS, Mr Darling was employed by ICTS as a security supervisor. He worked at a hospital, who engaged ICTS as their security provider. Mr Darling was arrested for alleged misuse of CCTV footage. A police investigation was initiated which was likely to take six to 12 months. The hospital told ICTS that Mr Darling could not return to site to work while he was under police investigation and so ICTS dismissed Mr Darling, relying on SOSR (third party pressure) as the reason.

The employment tribunal decided that he had been unfairly dismissed.

Although third party pressure can amount to ‘some other substantial reason’ in certain circumstances, ICTS was wrong to jump directly from the client’s refusal to allow Mr Darling on site to a decision of dismissal.

ICTS had lots of other contracts with other clients, so it could have offered alternative employment before deciding to dismiss. Even though Mr Darling had been directed to ICTS’s job vacancy site, the tribunal said that this wasn’t sufficient. The “lack of action” by ICTS was the issue.

This case is an important reminder that alternatives should be pro-actively considered before bending to pressure from third parties to dismiss an employee.

Further reading

The Employment Rights Act 1996

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