For March 2021, we have asked the employment team at Tughans to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal from time to time with the less common place disputes at work; issues that may, if handled incorrectly, lead to claims of discrimination or constructive dismissal or some other serious difficulty.

I am an HR Manager in a professional services company. Our teams each work with a particular client. One of our major clients has complained of a total relationship breakdown and performance issues with our employee “X” and has demanded that we dismiss and replace them. We are aware that this client is particularly difficult to work with, and while “X” has not been performing to the standards we usually expect, we feel that the client is somewhat responsible. “X” is desperate to move teams and has complained about increased stress and anxiety caused by the client. Unfortunately, “X” is an experienced employee and we don’t currently have an equivalent role for them in another team. How do I handle it?

Relationship breakdowns between your employees and clients can be difficult to resolve, as you need to balance your responsibilities as an employer with the needs of the business.

While you haven’t currently identified another role for X to move into, this remains the most obvious solution for everyone involved. You should fully explore whether X can be placed into another team, even temporarily while you find a more permanent solution. Given their desperation, X might be willing to accept a more junior role, perhaps as an interim solution. However, I suggest you would need to maintain their current salary in such circumstances.

Ultimately, if you cannot place X into a permanent alternative role, and the client is clear that they will not work with them, you may have to consider whether there are grounds for dismissal. X’ role is not currently at risk of redundancy, as you still require someone to perform their work for your client. There are no conduct issues and while performance concerns have been raised, you would have to go through a performance management process before effecting a dismissal on this ground, and as you say, the blame for X’s performance issues may rest with the client.

This leaves dismissal potentially on the grounds of “some other substantial reason”, that reason being pressure from a third party, your client. Before dismissing on this ground, the company should have received a clear request, preferably in writing, from your client to actually remove X. You would also need to consider whether the client’s request is sufficient reason to dismiss X, whether dismissal would fall within the range of reasonable responses and the extent of the injustice caused to X. Essentially, you will need to establish that dismissal is the only viable option open to the company and have evidence of the steps taken to attempt to resolve the issue between your client and X, and source alternative employment for X.

Dismissal on this basis is quite rare and could quickly become contentious. You should ensure that you have strong documentary evidence of both your client’s position and your attempts to find an alternative solution. It would be prudent to consider a compromise agreement with X to settle any claims arising from their employment or its termination.

If you cannot find an alternative role for X but do not feel that dismissal for some other substantial reason can be justified, you may need to remove X from the client’s team anyway, to preserve your business relationship with the client. If this would place X in limbo, this could trigger a redundancy situation. You should follow a full and fair redundancy procedure, again considering any alternatives or suitable alternative employment, before making their role redundant.

Separately, as X has complained about stress and anxiety, you should address these issues with them, especially if you want to retain them in the organisation. You should consider referring X for occupational health assessment and take account of their well-being and condition when exploring whether they can be redeployed within your business. You might ask OH for advice on X’s condition and accommodating them in the workplace.

If left unaddressed, X’s complaint around stress and anxiety could cause your relationship with them to sour and could lead to a period of sickness absence. This may complicate your efforts to find a solution, source alternative employment, or effect a dismissal, and could lead to a claim for unfair dismissal, or indeed a personal injury claim.

As mentioned above, you should have a good paper trail showing your client’s position and your attempts to find an alternative solution. Consultation with X throughout the process is crucial.