In order to justify a dismissal, an employer must prove that dismissal was a necessary action resulting from an employee misconducting themselves, capability, or a redundancy situation. However there are also grounds for dismissal that do not fall within any of these categories which are classified as “some other substantial grounds”. This category includes statutory restrictions (such as qualifications and permits) and third party pressure. Third Party Pressure Employers often have their employees working on a client site. Occasionally, a client may request that a particular employee is removed from their site. Although an employer may have no reason itself to dismiss an employee, if a client company or vendor threatens to retract its business due to the presence of a particular employee, then it is justifiable to address the client’s demands for the removal of that employee under the SOSG procedure. However, the EAT stated that an employee’s job cannot be at risk on the mere whim of a third party. In this regard, there must be a real threat to the client company’s business to warrant the employee to be removed. In Merrigan -v- Home Counties Cleaning Ireland Ltd (UD 904/1984), the client company ordered the employee’s removal from their site as they had read a newspaper article about her family highlighting that 3 of her children were heroin addicts. The client company believed that this employee’s presence would bring their company into disrepute and ordered her removal. Her employer sought alternative posts which she refused and she was subsequently dismissed. The EAT ordered that this employee be re-instated as the newspaper article did not draw any connection between the employee and the client company and so her presence on their site was not deemed to be a real threat to the client company’s business. Third Party Pressure Process If you ever faced with the situation where a client company has requested the removal of a particular employee, it is essential to follow correct procedure.
- Notify the employee of the matter and put them on unpaid leave until the matter is resolved;
- Write to the third party lobbying on the employee’s behalf and request a meeting at the highest level of management to discuss the matter. Sheehan -v- Keating’s Bakery (UD 738/1989);
- Clarify the reasons why the client insists on the employee’s removal and determine if there is a real threat to the third party if the employee remains. Merrigan -v- Home Counties Cleaning Ireland Ltd (UD 904/1984)
- Determine whether there is a risk to your business if you do not remove the employee form the client site (i.e. will they retract their business?)
- Invite the employee to a formal meeting to discuss the matter and get their viewpoint;
- Try and identify alternative vacancies in the company even if it is a lower role. Offer the employee a position if there is a suitable vacancy;
- If there are no vacancies or the employee rejects an alternative then the employer may proceed with dismissal;
Statuary Restrictions Depending on your jurisdiction, employers have certain obligations to ensure that their employees are legally compliant with statutory regulations. For example, a driver must have a valid driving license in order to perform their duties and, should they lose their license for whatever reason, a statutory restriction is placed on them thus disenabling them to perform their duties. Other examples of statutory restrictions include work permits, qualifications, and licenses. Should a restriction be placed on a particular employee, then the employer may have no alternative but to dismiss the employee. However, a reasonable timeframe should be given to the employee to rectify the imposed restriction (e.g. time to complete paperwork for renewing a visa, or time to sit a driving test) before dismissal is considered. Similar to third party pressure, the employer must also attempt to explore all avenues before considering dismissal. For example, in Manning –v- Indigo Holdings Ltd (UD 1001/1994), a driver was dismissed as his employer could not find insurance for him as he had lost his driving licence. The employer had to prove that they had attempted to contact as many insurance Statutory Restrictions Process Should you ever encounter a situation whereby one of your employees is unable to perform their duties due to a statutory restriction, then it is recommended to utilise the following procedure:
- Notify the employee of the matter and put them on unpaid leave until matter is resolved;
- Seek clarification on the restriction;
- If the matter cannot be resolved then invite the employee to a formal meeting to discuss the matter and get their viewpoint;
- Try and identify alternative vacancies in the company even if it is a lower role. Offer to the employee if there is a vacancy;
- If there are no vacancies or the employee rejects an alternative role then the employer may proceed with dismissal;
- If the matter concerns the lack of suitable qualification or work permit then the employer ought to consider the possibility of giving the employee a timeframe to obtain that qualification or process the renewal of their work permit. Wojciechowski -v- Tesco Ireland.
Conclusion When faced with a situation that you believe falls under ‘Some Other Substantial Grounds’ for either statutory restrictions or third party pressure, it is essential to adhere to the procedures as outlined above. However, in instances of third party pressure, not only is it important to follow the procedure, but you must also clarify if there is a genuine threat to your client’s business through the continued presence of your employee on their site and also if there is a threat that the client will retract their business should you fail to remove your employee form their site. As you can see, the process for statutory restrictions does not have the same issues as the reason for dismissal is strongly justified due to legislation. Regardless, the importance of procedure is equally weighted between both third party pressure and statutory restrictions. Employers are strongly advised to seek advice if they feel they are faced with an SOSG situation or if you have any queries in respect of the above article then please contact our 24 Hour Advice Service on 01 855 50 50.
