Section 4 of the Unfair Dismissal Acts highlights that potentially fair reasons for dismissal may be based on the capability and competence of the employee, the conduct of the employee, and the fact that the employee’s role has been made redundant. Most employers would be well aware of these grounds for dismissal but there are scenarios when an employer is faced with a situation whereby the potential grounds for dismissal does not necessarily fall into these age-old categories. What does an employer do and can they lawfully dismiss? Importantly, an employer can lawfully dismiss an employee, even though the matter wouldn’t be considered conduct, competence or redundancy, in circumstances where there are some “other substantial grounds justifying the dismissal” (commonly referred to as SOSG dismissal). So what are the most common circumstances in which an employer may dismiss an employee for SOSG and what procedure should an employer follow?
Third Party Pressure
It may often be the case that an employer will have a number of employees working on their customers’ sites (e.g. a security company’s employees working at a supermarket). A regular occurrence that employers face would be where their customer no longer wants that employee on their site, for whatever reason, and the employer is potentially left with a scenario where they cannot offer any alternative work. What can be done as it is clear that an employee, through no fault of his own, may be dismissed despite having done nothing wrong and, as such, suffers a strong injustice? In the case of Henderson v Connect (South Tyneside) Ltd [2010] IRLR 466 the Employment Appeals Tribunal in the UK stated that if the employer had done everything that it reasonably could to avoid or mitigate the injustice brought about by the stance of their client, most obviously by (a) trying to get the client to change his mind and, if that was impossible, (b) trying to find alternative work for the employee, but had failed then any eventual dismissal would not be unfair. This is the case even though the outcome might be unjust as that injustice is not the result of any unreasonableness on the part of the employer. This has been the position in Ireland for quite some time now. In particular, the Employment Appeals Tribunal stated in both Sheehan -v- Keating’s Bakery (UD 738/1989) and McGuirk -v- Shamrock Oil Supplies (UD 528/1996) that the employer must request a meeting with the highest level of management of the third party to clarify the allegation or problem with the employee and seek a resolution. Indeed, a failure to do so may result in any subsequent dismissal being unfair. As a result, if an employer is faced with a third party pressure scenario they should adopt the following procedure:
- Notify the employee of the matter and put them on unpaid leave until the matter is resolved
- Write to the third party lobbying them on the employee’s behalf and request a meeting to discuss the matter. The purpose here is to get the third party to change their stance
- If the client insists on the employee’s removal then clarify reasons why.
- Invite 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 then the employer may proceed with dismissal
Statutory Restrictions
This is a common SOSG matter and concerns a scenario whereby for whatever reason an employee has become restricted by statute from performing their role with the company. A good example is that of a delivery driver: if the employee loses their driving license or due to a number of car accidents has become uninsurable as insurance companies won’t take the risk then an employer may have no other option but to terminate the driver’s employment. This is because the company cannot have the employee driving illegally. In Brennan –v- Bluegas Ltd. (UD 591/1993) the EAT considered a case where an employee had three accidents in a six month period. As a result of these accidents, the employer subsequently dismissed the employee as their two underwriters refused to provide insurance cover as a result and they substantially increased the existing premium. The employer could evidence that they were unable to secure alternative insurance from six other insurance companies. The EAT decided that in the circumstances the dismissal was not unfair as the employer had acted reasonably before dismissing the employee by trying to source alternative insurance cover. However, the EAT inManning –v- Indigo Holdings Ltd(UD 1001/1994) stated that the employer must be able to evidence in writing that insurance companies will not cover the employee or that insurance has become prohibitively expensive. In the case of Haugh and Haugh –v- Atlanta Nursing Home Ltd., (UD 490/1994) the EAT had to consider the fairness of dismissing a nurse once new regulations came into force which meant that this employee no longer held sufficient qualification for her nursing role. The EAT accepted that as the employee was no longer sufficiently qualified and taking into account that she was offered alternative employment the tribunal determined that her dismissal was not unfair as the employer was bound to comply with legal requirements. The Irish courts have applied this category broadly and have even stated in the case of Flynn -v- Power [1985] IR 648 that a convent school could justifiably dismiss an employee after she became involved in an illicit love affair with a married man in a small country town. This decision to dismiss was fair given the nature of the employer and its religious ethos. Similar to third party pressure, an employer should follow the procedure below if they believe that the employee is restricted by statute from performing their work:
- Notify the employee of the matter and put them on unpaid leave until matter is resolved
- Seek clarification on the restriction. For example write to the insurance company if insurance cover has been withdrawn.
- 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 then the employer ought to consider the possibility of the employee obtaining that qualification as a an alternative to dismissal
Conclusion
Should a situation of SOSG arise, an employer must still follow a fair and reasonable dismissal procedure. This procedure may vary depending on the substantial grounds justifying dismissal as different issues require differing levels of employer action. For example, in third party pressure scenarios an employer should lobby the third party on behalf of the employee to try and save their position. However, this type of action would not be required where the employee who is a driver has lost their driving license as the employer can hardly request the courts to change their mind. In the latter scenario a simple process of seeking alternative employment should be followed. Thus, an employee is still entitled to fair process and should be invited to a formal meeting to get their side of the story. This would involve a discussion of potential alternative roles they can do or efforts that can be made to retain them in their current role. If no reasonable suggestions arise and there is nothing else that can be reasonably done then the employer may justifiably dismiss the employee for SOSG.
Employers should seek advice from Peninsula Business Services when faced with a potential SOSG scenario or where they wish to dismiss an employee for some reason that falls outside the traditional categories of conduct, competence and redundancy. Please phone the 24 Hour Advice Service on 01 8555050 and one of our experienced advisors will be happy to assist.
