Dismissing injustice

Greenwood v Whiteghyll Plastics Ltd

The law says that employers can dismiss an employee as a result of pressure from a third party. However, the Employment Appeal Tribunal (EAT) said in Greenwood v Whiteghyll Plastics Ltd that employers must consider whether it would result in injustice to the employee.

Basic facts

Mr Greenwood was employed as a shop fitter by Whiteghyll who hired him out to work in different stores. Initially, he worked on the conversion of Safeway stores to Morrisons, but when this work dried up in early 2006 he started doing “roll-outs” for new promotions for Morrisons.

In mid-2006 the chain made a number of complaints about his work, and barred him from their stores, saying he was no longer acceptable an “acceptable representative”. Mr Greenwood disputed this, saying that the duty manager had to sign a report when he left every evening and had not made any comments about the standard of his work.

Whiteghyll initially tried to find alternative work for him, but having just laid nine people off, there was not enough to go round. After a disciplinary hearing, he was dismissed and his appeal was rejected. Mr Greenwood claimed unfair dismissal.

Tribunal decision

The tribunal said that, overall, the disciplinary procedure was fair although Mr Greenwood was denied certain material from Morrisons at the hearing. This error was, however, rectified when it was all made available at the appeal.

It found the dismissal fair “for some other substantial reason” under section 98(2) of the Employment Rights Act (ERA) 1996, saying that although Mr Greenwood did not think it fair that Morrisons should dictate to his employer, the reality was that it had the “whip hand.”

It also thought his employer had acted reasonably under section 98(4) of the ERA. Given that the supermarket chain refused to have him back and there was no other work available, Whiteghyll had no alternative but to dismiss him.

Arguments on appeal

Mr Greenwood argued on appeal that the tribunal should have considered the Court of Appeal decision of Dobie v Burns which said that although pressure from a third party can justify dismissal, tribunals should also consider the extent and the nature of the injustice to the employee that might involve.

For its part, the company said that the Dobie case should be distinguished because in this case, the tribunal had weighed up all the relevant points. Anyway, it said that even if there is injustice to the employee, that does not mean that the dismissal is necessarily unfair.

EAT decision

Although the EAT agreed that pressure from a third party can justify dismissal, it found against the company saying that it had failed to consider the very important factor as to “whether there will or will not be injustice to the employee and the extent of that injustice.” It should, therefore, have considered his length of service, whether it was satisfactory or not, and the difficulties he might face in obtaining other employment.

The EAT accepted, however, that even if the tribunal had considered the injustice to Mr Greenwood the outcome might have been the same. On the other hand, given that the tribunal did not make any finding criticising Mr Greenwood's work, it might have found the injustice he suffered was so severe that the company should have reorganised its business. For instance, Mr Greenwood could have taken the job of the person who took over his job at Morrison's.

Ultimately, however, the EAT did not know how the tribunal “would have determined this matter and it cannot be shown that after considering these matters, it would inevitably have upheld the dismissal of the claimant as being a fair one.”

The appeal was therefore allowed and the case remitted to a different tribunal to consider these points.