It is accepted that pressure from a third party to dismiss an employee is a potentially fair reason for dismissal. However, employers should be cautious when dismissing for this reason and must follow a fair procedure to ensure there is no claim of unfair dismissal. The potential pitfalls in this area are highlighted in the case of Nye v William Hardwicke.
Mr Nye, who was the designated premises supervisor and ran the nightclub on behalf of the employers, failed to report numerous occurrences of crime on the premises. The police took the position that Mr Nye’s removal was “non-negotiable” if the club wished to retain its licence and therefore, continue to operate. The employers formed the view that the best chance of retaining its licence was to dismiss Mr Nye. They subsequently informed the police that he would be removed from his post and he was later dismissed at a disciplinary hearing for “some other substantial reason due to third party pressure”. Mr Nye subsequently raised a claim for unfair dismissal. The Employment Tribunal held that while the employers had a fair reason, the dismissal was procedurally unfair because the decision to dismiss him was taken before he was invited to the disciplinary meeting. The meeting was simply to “rubberstamp” a decision which had already been made and not to weigh up the merits of the evidence against him which an employer acting reasonably is required to do.
Good Practice
When assessing the fairness of a dismissal which arises from third party pressure the employer must bear in mind that:
- where a third party unreasonably or unfairly requires an employer to dismiss an employee, that is a still fair reason for dismissal.
- the dismissal must still follow a fair process - where there is an injustice to the employee caused by the third party, the employer must consider steps to mitigate that injustice. (Most obviously this is asking the third party to change its mind or the employer must give consideration to alternative employment).
- it is only when a failure to dismiss would result in serious harm to the business and where mitigation is not viable that the decision to dismiss will be fair.
It is worth noting that, in this case, Mr Nye’s compensatory award was reduced to zero. The tribunal held that, given the police’s uncompromising attitude and the lack of alternative roles available, even if the employer had followed a fair procedure Mr Nye would still have been dismissed.
If you would like to discuss the issues raised in this article, please contact a member of our employment team.