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By michaelscutt, 13/03/2009 11:30 am

The recent uproar over the revelation that a company called The Consulting Association (TCA) maintained a blacklist of “problem” employees which it then passed on to construction companies, reminded me of the National Staff Dismissal Register set up in the retail industry last year and which I wrote about in these pages last October.  In that case Action Against Business Crime (AABC), a consortium formed between the Home Office (!!!)  and the British Retail Consortium, set up a scheme to share information between potential employers of details of employees dismissed for offences of dishonesty, but not convicted in the criminal courts of wrongdoing.  In other words if an employer dismissed an employee for theft or fraud they would then place that person’s details on the NSDR and thus make it much harder for them to get alternative work, at least within the retail sector.  At the time it was claimed that this didn’t breach the Data Protection Act (DPA), which claim I still find rather surprising.

What is so very different about TCA’s activities?   The Information Commissioner says that they have committed a serious breach of the DPA and could be prosecuted for failing to register itself as a data holder under the DPA.  The BBC reports that information passed on by TCA to its subscribers was highly prejudicial and personal, such as “Irish ex-Army, bad egg” and “ex-shop-steward, definite problems” and included people who had raised health and safety issues on construction sites and union membership.  These are all issues which are covered by legislation designed to protect workers.  For instance, if a worker is dismissed for belonging to a Union it will be an automatically unfair dismissal, as it will if someone is dismissed for raising health and safety issues.  Anti-discrimination laws prevent a person being discriminated against on grounds of nationality – and that covers recruitment of staff as well as not subjecting them to detriment when actually in employment.  What the TCA is alleged to have done is more extreme than the NSDR scheme, but the principal is the same – personal information is being disseminated about workers who have no knowledge of the disclosure or right of redress and without any safeguards in place on the accuracy of the information. These types of scheme need to be banned: they are a far more insidious threat to our personal liberty than the ubiquitous CCTV cameras that watch our movements wherever we go. 

“Usefully Employed” also posted an interesting piece on this very issue earlier this week – see the link to his blog on my blogroll.

This article will appear in the “Docklands” and “Peninsula” newspapers week commencing 16th March. 

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By michaelscutt, 13/03/2009 10:59 am

A rather alarming new initiative was reported last week: the creation of the National Staff Dismissal Register, by an organisation called Action Against Business Crime (AABC), a consortium formed between the Home office and the British Retail Consortium.  It is a database for employers to share details on those staff dismissed (but not necessarily convicted in the criminal courts) for offences of dishonesty; e.g. theft, forgery, damage to company property and so on. According to the AABC’s own press release the register seeks to create a central register to cover those employees not convicted or cautioned for criminal offences. It appears that it is aimed at the retail industry at the moment, although it will almost certainly spread if successful.  It will go live this month.  Apparently it is not in contravention of the Data Protection Act.

This strikes me as being a very dangerous development.  What safeguards are there for employees placed upon it?    It means that unscrupulous employers, or those with a grudge against a former employee could put an employee’s name on the register and effectively stop them getting work in the future.  What about the old adage of being innocent until proved guilty?  This scheme is aimed at those people who haven’t been cautioned or prosecuted and thus haven’t had the opportunity to defend themselves.  It must also raise issues under the Human Rights Act.  I don’t condone workplace crime by any means, but this intrusive scheme can’t be the right way to address the issue.

This post first appeared in the “Docklands” and “Peninsula” newspapers last October.

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By michaelscutt, 13/03/2009 8:00 am

This is often a live issue in redundancy situations.  At the moment, with the number of redundancies rocketing skywards, it is a question that is being put to me time and again.  Quite often the employer’s rationale for placing a person “at risk” of redundancy can look shaky.

The definition of redundancy is found at s.139 of the Employment Rights Act 1996.  It is defined thus;

 (1) For the purposes of this Act an employee who is dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is wholly or mainly attributable to—

(a) the fact that his employer has ceased or intends to cease—

(i) to carry on the business for the purposes of which the employee was employed by him, or

(ii) to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business—

(i) for employees to carry out work of a particular kind, or

(ii) for employees to carry out work of a particular kind in the place where the employee was employed by the employer,

have ceased or diminished or are expected to cease or diminish.

(my emphasis above)

There are several possible bases, within the above definition, for an employer to state that a role is no longer required.  In brief it will be either because the employer is ceasing that type of work completely or at that particular location.  So,  for instance, outsourcing a function to India could be capable of being a redundancy situation for the UK workers involved, as would be the case where an employer decides to stop trading completely or to cease trading in a certain type of goods.  However, if an employer decides that they need to reduce headcount, as is often the case, problems can arise over how the unlucky candidates are selected. 

I have written about selection processes before so won’t repeat it again here.  The question which does get posed is whether the role of an employee placed “at risk” is really redundant.  The key words are “work of a particular kind”.  What exactly does that mean?  In a 2002 case the Court of Appeal decided that it was a question of fact and not law.  In other words, each case will turn on its own facts.  In that particular case (Shawkat v Nottingham City Hospital NHS Trust [2002] ICR 7) the Court held that because a restructuring might require the employee to do different work to that which he was doing previously, that fact (on its own) was not conclusive evidence of the employee’s redundancy.

The facts in Shawkat were these.  Dr Shawkat was a thoracic surgeon.  The NHS Trust for whom he worked built a new facility and merged the cardiac and thoracic units.  This required Dr Shawkat to do cardiac as well as thoracic surgery.  He didn’t want to do this and was dismissed.  He succeeded with a claim for unfair dismissal.  However, he also claimed that the reorganisation meant that he was redundant and thus due a redundancy payment.  It was on this point that he ultimately lost, before both the Employment Appeal Tribunal and the Court of Appeal.  The EAT decided that the words “work of a particular kind”  referred to the needs of the employer’s business and it didn’t mean the particular type of work that the employee did, on the basis that if it did an employer would never be able to reorganise itself if it required employees to do different types of work.

Dr Shawkat might have succeeded if the Trust had announced it was reducing the amount  of thoracic surgery undertaken or that it was closing it altogether.   He had been replaced by a surgeon doing cardio-thoracic work and the job had changed but the crucial factor was the amount of thoracic work had not diminished. 

 Those facts are rather particular.  What comes out of the case is that in examining whether an employee has been dismissed for redundancy an ET will probably take a wider interpretation of what is meant by work of a particular kind and consider whether it has reduced. If an ET decides that the amount of work has not diminished (or ceased) then the reason for dismissal (and remember that redundancy is but one reason for dismissal) may then be unfair. 

In other words, if you have been put at risk of redundancy and you think that your role is continuing, albeit perhaps with a different title or some minor additional responsibilities tacked on, you may have an argument for saying that your role is NOT redundant and that if your employment is terminated it will amount to an unfair dismissal.   Problems often arise where job descriptions are vague and ill drafted.  Employees can argue that the new role is effectively what they were doing already and the employer will disagree.  That is a dispute that will only be resolved by an ET in the end. 

As ever, if in doubt about your own position, seek legal advice.  I can be contacted on 0207 464 8433 or at michaelscutt@dalelangley.co.uk