The recent case of Henderson v Connect (South Tyneside) Ltd has demonstrated an important point about unfair dismissal and the conditions that must apply for a dismissal to be considered unfair.

Mr Henderson worked as a minibus driver for disabled children. This was a service that Connect provided to the local Council under contract, with the Council having the absolute right to veto the employment of any individual who provided the service.

Initially, Mr Henderson had a clear CRB check, but then allegations were made against him concerning his nieces. Mr Henderson protested his innocence, and the police did not bring criminal proceedings. However, the South Tyneside Safeguarding Children Board reviewed the case and decided that there had been abuse and that Mr Henderson could no longer work with children.

Mr Henderson was suspended by Connect, who meanwhile tried to persuade the Council to reconsider their decision and allow Mr Henderson to continue in his position. Their efforts proved unsuccessful, and, since no other suitable position for Mr Henderson could be found, Connect felt that they had no other choice but to dismiss him. Mr Henderson then made a claim for unfair dismissal.

In the resulting employment tribunal hearing, the tribunal deemed the dismissal fair, as it had been for “some other substantial reason”, with the reason being pressure from a third party. It found that Connect had done everything in its power to support Mr Henderson, and once these efforts failed, dismissal had been within the range of reasonable responses open to the company.

Mr Henderson subsequently appealed the decision to the Employment Appeal Tribunal. His appeal was unsuccessful.

During the appeal, the presiding judge, Mr Justice Underhill, stated that cases of this type are “very uncomfortable” for employment tribunals. Unlike the employer, the client has no obligation to behave fairly towards the employee. And, although the Council may well have treated Mr Underhill unfairly by not allowing him to put his case to the Board, Mr Henderson had no recourse in law.

The tribunal had to focus on the actions of the employer, finding that: “if the employer has done everything that he reasonably can to avoid or mitigate the injustice brought about by the stance of the client … but has failed, any eventual dismissal will be fair: the outcome may remain unjust, but that is not the result of any unreasonableness on the part of the employer.

“That may seem a harsh conclusion; but it would of course be equally harsh for the employer to have to bear the consequences of the client’s behaviour, and Parliament has not chosen to create any kind of mechanism for imposing vicarious liability or third party responsibility for unfair dismissal.”

In considering cases such as this, the tribunal is not required to expressly state that it has weighed up the injustice to the employee: in the majority of cases, as in this one, the decision will make this apparent. The appeal was dismissed.

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