Bancroft v Interserve (Facilities Management) Ltd – justifying third party dismissals

Today we’re going to examine the recent Employment Appeal Tribunal decision in Bancroft v Interserve (Facilities Management) Ltd, a case concerning a “Some Other Substantial Reason” dismissal (“SOSR”). In doing so, we’ll examine the following four elements:

  1. What were the facts in Bancroft v Interserve (Facilities Management) Ltd?
  2. What is the relevant law relating to unfair dismissal and this case?
  3. Why did the Employment Appeal Tribunal reach this decision?
  4. Why is this case significant?

What were the facts in Bancroft v Interserve (Facilities Management) Ltd?

Mr Bancroft (‘the Claimant’) is a chef. From 20 July 2004 he worked at Wordsworth House, a bail hostel. On 30 June 2008, he became an employee of Interserve (Facilities Management) Ltd (‘the Respondent’) to provide catering services to the bail hostel under a contract with the Home Office (‘the third party’). In September 2010, the third party requested the removal of the Claimant after receiving recommendations to do so from the Claimant’s manager. On 21 December 2010, the Claimant was suspended following a disciplinary hearing that arose from a complaint made against the Claimant by another member of staff, despite receiving a first and final warning. The Claimant turned down the Respondent’s offer of a lower paid alternative job 30 miles further away and was dismissed on 16 March 2011. The Employment Tribunal found the third party’s pressure on the Respondent to remove the Claimant satisfied ‘some other substantial reason’ to dismiss the Claimant. The Employment Tribunal also found the Respondent did everything it could reasonably do to mitigate the injustice brought about by this pressure. The Claimant appealed to the Employment Appeal Tribunal against this point.

What is the relevant law relating to unfair dismissal and this case?

Under the Employment Rights Act 1996 s 94(1) an employee has the right not to be unfairly dismissed. The employer must show under s 98(1)(b) ‘some other substantial reason’ for the dismissal and under s 98(4) whether or not the dismissal is fair depends on:

  1. whether the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and
  2. shall be determined in accordance with equity and the substantial merits of the case.

Why did the Employment Appeal Tribunal reach this decision?

The Employment Appeal Tribunal allowed the appeal and remitted the claim back to the Employment Tribunal. The judgment referred to Henderson v Connect South Tyneside Ltd [2010] IRLR 468 where it held employers must do all they reasonably can to mitigate the injustice brought about by third parties by trying to get the client to change their mind and then trying to find alternative work. The Employment Appeal Tribunal found that the Employment Tribunal failed to make all the necessary findings of fact on the issue of whether the Respondent had taken all steps to mitigate the injustice caused by the Claimant’s removal at the third party’s request. Firstly, the grievances raised by another member of staff arising in disciplinary procedures in December were deemed trivial by the Employment Tribunal. Secondly, the Employment Tribunal did not address why the Respondent had not asked the manager to explain his motives for removing the Claimant. Thirdly, difficulties between the manager and the Claimant were not considered between the third party’s request to remove the Claimant in September 2010 and his dismissal in March 2011.

Why is this case significant?

This case is significant because third parties can potentially give rise to a fair dismissal for ‘some other substantial reason’. This means there may be a need for contractual arrangements to govern the rights of a third party to request dismissals. However, employers may not agree with the request and third parties may have ulterior motives for wanting employees dismissed. This raises questions of fairness and injustice if customers dictate to employers who to dismiss without trial or opportunity for employees to represent themselves. Indeed, this case demonstrates instances where the employee suffered an injustice without considering more facts. Subsequently, this case shows employers need to attempt to get third parties to change their mind and find an alternative job for the employee if this fails. The best advice for employers is to address potential issues between clients and employees before they fully develop. This is also good for maintaining client and employee relationships.