How Do I Handle It? – “Not On My Site”
By Employment Director, Patricia Rooney.
We have a number of service contracts with large organisations in Northern Ireland. One of our major clients has asked us to remove our employee from their site. The client has not complained about the employee’s work performance but instead about allegations of criminal activity against the employee, which were published in a local newspaper. How do I handle this?
I would suggest you look at the contract with your client to see what rights the client has to dictate which of your employees can work on their site, and in what circumstances they can ask you to remove your employee. In the absence of any specific written agreement with your client, I imagine you would still wish to consider their request to remove this employee in order to ensure your ongoing business relationship.
I would recommend you should also review the particular employee’s contract of employment. Has the employee been engaged specifically to work at that client’s site? Or is this a contract of employment which allows you to place the employee at any of your client’s sites: is there a mobility clause? If the former, in view of the client’s request, you may have a valid reason for taking steps to dismiss the employee fairly, on the basis of the client’s request.
If however, the employee’s contract does not specifically require him to work at that client’s site, you ought to consider the possibility of moving the employee to the site of one of your other clients. In this regard, I suggest you meet with the employee and advise him that your client has asked for him to be removed from their site. Depending upon the nature of the employee’s contract, duties, responsibilities etc., you could advise the employee that you are currently investigating the possibility of a transfer to another site and relocating the individual.
Whilst it may be possible to fairly dismiss the employee due to pressure from your client, as the employer you should consider how the client’s request impacts upon this particular employee, and what unfairness the client’s request causes this employee – which eventually could result in his dismissal.
In the event that the individual was specifically employed to work at this particular site and or you cannot source another role for this employee at an alternative site, you may be able to dismiss him fairly, the reason for dismissal being some other substantial reason, namely the request from your client. You should of course remember to fully document the client’s request to remove the employee and your attempts to source alternative employment before moving to consider dismissal. If you do decide to dismiss the employee, you must follow the statutory dismissal process and meet with the individual, allowing him/her the right to be accompanied, and the right of appeal in the event that their employment is terminated.
You should be aware that case law has held that customer pressure may allow an employer to fairly dismiss an employee but, in the event of any claim, the Court will look at the contractual arrangements with your client and the employee, your conduct in the particular circumstances and how you have considered, and attempted to alleviate, the injustice to this employee.
While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.