The range of reasonable responses
Many employers and employees will know that a dismissal will not be substantively unfair if the employer acts within a “range of reasonable responses”. Many will also be aware that there is “catch all” defence of some other substantial reason an employer can put forward if the reasons for the dismissal do not fall within other categories.
So how far can these 2 principles be used for employers ? Well, recent cases suggest that the principles can even extend to there being a fair dismissal based on pressure from customers or clients, which can fall into the category of some other substantial reason.
Many employers will be familiar with a situation where a key account manager falls out with or is not liked by an important client. That client may demand that the individual is removed from their account, and it seems that this potentially can lead to a fair dismissal and that the principle may even extend to a personality clash between employees.
In dealing with several of these cases recently, the approach a Tribunal will take seems to be that firstly the employer will need to show that genuine and significant pressure was exerted by the 3rd party. If the employer can demonstrate this, the employment tribunal will the weigh the degree of injustice to the employee and to what extent the employer looked at all the available options genuinely before dismissing. Factors likely to be relevant to a genuine assessment by an employer would be :-
- what was the employee’s conduct like ?
- does the employer’s employment contract deal with this issue and did the contract with the 3rd party allow them to exert the pressure contractually ?
- the effect on the employer’s business if the threat from the third party was ignored
- did the employer consider alternative roles for the employee ?
- did the employer try and find a solution to the issue with the 3rd party ?