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By Michael Scutt, 29/11/2009 2:05 pm

How not to warn an Employee

A picture is said to be able to say a thousand words – how many does a video say then?  I’ve been trawling through YouTube for videos on employment law to illuminate, educate or, hopefully, just to amuse.  This video – produced by students at the University of the West of England (UWE) – deals with the issue of how to warn an employee for misbehaviour. It’s good at bringing a difficult subject to life. However, when I first watched it I thought it might not have had education as its main purpose …

 Click on the link below to watch it.

How not to warn an employee

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By Michael Scutt, 26/11/2009 2:47 pm

As Annabel Kaye of Irenicom points out in her very useful article on the subject on the The Grapevine online magazine the concept of reasonable belief crops up throughout employment law – particularly in dismissals.  In the case of  Taylor v Alidair CA 1978 ICR 445, CA Lord Denning got to the nub of the matter with his customary succinctness;

“Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable and incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent”

Annabel’s article deals with how the employer can demonstrate reasonable belief and is well worth a read.  The key issue is that an employer mustn’t act hastily, but after having carried out a thorough and fair investigation into the allegation.

If you need advice on this subject please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

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By Michael Scutt, 25/11/2009 10:30 am

Three things connected with Tesco Law caught my eye last week and we saw some interesting developments in the liberalisation of the legal profession, aka the legal services industry. 

Firstly, On the 18th November, the Legal Services Board (“LSB”) published its consultation paper “Alternative Business Structures: approaches to licensing”  .  The LSB will become the regulator of the regulators when ABSs come into existence in 2011..  The Act contains eight “regulatory objectives” and five “professional principles”. There will be several frontline regulators and barristers could be regulated by the SRA, Solicitors by the Institute of Legal Executives and Legal Executives by the Archbishop of Canterbury(apparently he is not only the supreme authority in the Church of England but he also oversees Notary Publics when he isn’t trying to prevent the Pope from half-inching his dioceses).  The regulatory structure seems overly complicated.

In the meantime, pending the new structures coming into force, the LSB needs to set rules for how the frontline regulators will apply the new core principles enshrined in the LSA.  They are a bit “motherhood and apple pie” in nature; for instance Part 1 1(1) sets out the regulatory objectives.  They are

(a) protecting and promoting the public interest

(b) supporting the constitutional principle of the rule of law

(c) improving access to justice (haven’t we seen this elsewhere?)

(d) protecting and promoting the interests of consumers

(e) promoting competition in the provision of services (by authorised persons)

(f) encouraging an independent, strong, diverse and effective legal profession (stop laughing at the back there)

(g) increasing public understanding of the citizen’s legal rights and duties

(h) promoting and maintaining adherence to the professional principles

S.3 states the “professional principles” that apply to “authorised persons” who should;

(a) act with independence and integrity

(b) maintain proper standards of work

(c) act in the best interests of their clients

(d) (in litigation) comply with their duty to the court  to act with independence in the interests of justice, and

(e) keep client affairs confidential

All good stuff and hard to disagree with the sentiments expressed, save that many in the profession will give a hollow laugh to 1(1)(f) above. The consultation paper seeks to put these principles into practice and in the foreword the Chairman of the LSB David Edmonds states that the LSB doesn’t want to regulate ABSs themselves, that is a job for the “front-line” regulators such as the SRA, the Bar Standards Board and ILEX, to take three.   The consultation paper is 113 pages long and I must confess to not having read it yet.  It’s next on the list. 

Secondly, another document on my reading list is “The Big Bang report – opportunities and threats in the new legal services market“ compiled by the Byfield Consultancy.  It was launched at the offices of City law firm Fox Williams LLP last Thursday to an audience of the great and the good.  I went along as well.     The report has the advantage of being only 42 pages long and contains an overview of the history of the LSA and the impetus behind it, as well as interviews with some of the main players.  

Finally, the Bar Standards Board announced last week that barristers would be allowed to join Legal Disciplinary Partnerships (LDPs) as managers (but preferably not as shareholders) in LDPs with up to 25% non-lawyer managers, be regulated by the SRA and not be required to requalify as a solicitor.  The BSB hasn’t given the green light to barristers joining ABSs; that must wait until 2010 at the earliest when more consultation has occurred.  Barrister only partnerships will be allowable (at the moment barristers practicing from chambers are all self-employed).   This decision is of historic significance – it could mark the end of the Bar as we know it. 

I will be reading the above reports and blogging on them again in due course, once the current deluge of work in my day job has calmed down.  We are now entering the beginning of the festive season when many employers like to present their staff with a gift of a compromise agreement and a visit to an independent solicitor to be told their rights.  The next few weeks look like being particularly busy this year.

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By Michael Scutt, 25/11/2009 10:04 am

Take a look at this article from The Daily Telegraph.  A good idea in principle but I’m wondering about the Data Protection issues involved, as well as the subsequent satellite litigation that would undoubtedly result.  Does anyone remember the blacklist of “difficult” employees compiled by The Consulting Association (see my previous post on the subject here)?  Or the National Staff Dismissal Register (see here) ? 

I can accept that there is a world of difference between a register kept by employers and passed on to others to identify those employees who stand up for their rigths and those people who bring many different (and fabricated) claims – but how do you differentiate between the two in practice?  I suppose we should bear in mind Oscar Wilde’s aphorism (albeit paraphrased) “To have one Discrimination claim is unfortunate, to have 34 is downright suspicious”.  Preventing someone from asserting their legal rights is not something to be undertaken lightly. 

It’s interesting that the Employment Tribunal isn’t keen to get involved and I can see why.  These serial litigants might turn their hand to defamation or judicial review instead of discrimination claims. Tribunals are wary of awarding costs against litigants and they certainly aren’t going to relish banning individuals from bringing claims. Since 1993 they have had the power to make a “restriction of proceedings order”, but they are very rare.   The way forward is shown  by Her Majesty’s Courts Service, which runs all the civil and criminal courts (but not the Tribunals) in the country and which maintains a list of vexatious litigants on its website (www.hmcourtsservice.gov.uk).  However, the people listed on there will have been declared a vexatious litigant in proceedings and thus there has been a judicial finding.  If Mr Turner’s idea is to get off the ground (and it deserves to) he will need the ET to be more robust in making  “restriction of proceedings orders” and then publishing that list. 

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By Michael Scutt, 22/11/2009 9:27 pm

A couple of weeks ago I was “twitterviewed” * by Lance Godard of 22Twts fame. It covered both professional and personal stuff and,  if you haven’t got any paint drying and don’t feel the need for root canal surgery, why not read the interview by clicking here?

* A Twitterview is a live interview on Twitter in 22 questions.  It’s a great thing to do – thanks for inviting me Lance.

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By Michael Scutt, 21/11/2009 11:35 am

 This blog has been missing high culture, art and music for too long.  It’s time for a change, but not quite yet.  Instead have a look at this video from Manpower, via YouTube, on how to approach employment law in song – it’s very good. 

The Employment Law Sing-a-Long Song

The lyrics are great – “sing along or you could end up in jail” - probably only in the US of course.  “Get all the facts or you might get the axe” – brilliant!

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By Michael Scutt, 20/11/2009 11:16 am

Just two this time.  An upsurge in work has meant I haven’t been blogging as assiduously as usual.  There also haven’t been very many interesting cases around – apart from these two below.

Diggins v Condor Marine Crewing Services [2009] EWCA Civ 1133

The Court of Appeal has ruled that an seaman employed by a company operating from and registered in Guernsey, on board a ship registered in Nassau, but which spent its time sailing between Portsmouth and the Channel Islands could bring a claim for unfair dismissal.  The Claimant lived in Suffolk.  The Court held that the important factor was where his duty began and ended – which was Portsmouth.   He can proceed with his claim for unfair dismissal.

Cook v MSHK Limited [2009] EWCA Civ 624

This case is authority for the proposition that where an employee commits a fundamental breach of contract, the employer must take action, which will usually be summary dismissal, without delay.  In this case the employer didn’t commence disciplinary proceedings quickly enough and was held to have affirmed the contract, thus losing the right to rely on that breach.  Alternatively, the employer should reserve its rights to take such action if the employee is subsequently absent on sick leave, as in this case.

 If you need any advice or have queries on these please call me – details on the side bar. 

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By Michael Scutt, 18/11/2009 10:30 am

I said 'TUPE, not toupee'

This can be a real headache for employers where they have “inherited” employees following a transfer of an undertaking under the TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006.  It is quite well known that if TUPE applies to a transfer then if the Transferor (let’s call it NewCo for ease if not originality) dismisses an employee from the transferee (OldCo) for a reason connected with the transfer, the dismissal will be automatically unfair, unless NewCo can show that an “economic, technical or organisational” reason applied entailing changes in the workforce.  TUPE has the effect of transferring all employment contracts and rights from OldCo to NewCo.

However, what is the situation where the TUPE transfer occurred some time ago and NewCo now wants to ensure that the employees from OldCo are on the same pay deal, the same holidays, sick pay arrangements etc?  This presents a problem for NewCo because Regulation 4(4) of TUPE provides that any variation to a term of a contract covered by TUPE will be

“void if the sole or principal reason for the variation is (a) the transfer itself; or (b) a reason connected with the transfer that is not an economic, technical or organisational (ETO) reason entailing changes in the workforce”

So, if the proposed variation is because of the transfer of the undertaking or is linked to the transfer but is not an ETO reason, the variation will not be legally valid, even if the affected employees agree to the change.  On the other hand if the proposed variation is because of the transfer but is an ETO reason then it can take place.  An ETO reason usually, but not always, entails reductions in the workforce but whether the proposed variation will be an ETO reason will usually be a matter for close factual analysis. 

 When employees seek legal advice on this issue it is usually the case that the proposed variation would adversely affect the employees, but it doesn’t have to be the case.  In 2007 the Court of Appeal confirmed that any changes that were beneficial to the affected employees would be binding.

Many people think that if much time has passed since the transfer of the undertaking (OldCo to NewCo) that is sufficient defence, but mere passage of time is not the whole answer.  The real issue is “what is the reason for the proposed variation?”  The fact that many months, or even years has passed, since the transfer is not going to be conclusive on its own. A case involving Dale Langley (my partner’s) previous firm, Langley & Co, called Taylor v Connex South Eastern EAT/1243/99 [2000] held that a lapse of two years was insufficient.  As ever though, as in all cases, they all turn on their own facts: this is a difficult area and legal advice should be taken (especially by employers) before proposing a variation that might fall foul of TUPE.   Even if TUPE is not engaged, an employer that tries to implement a unilateral change in an employee’s terms and conditions e.g. by reducing employee’s pay may find itself facing a claim for constructive dismissal and/or unfair dismissal.  Employers should proceed with care…

If I can assist please do not hesitate to contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.  Nothing contained in this post or anywhere else on this blog constitutes or is intended to constitute legal advice or creates a solicitor-client relationship between me and you the reader.

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By Michael Scutt, 06/11/2009 6:10 pm

There have been some noteworthy cases over the last couple of weeks, such as;

Grainger plc v Nicholson UKEAT/0219/09/ZT

Climate change can be a philosophical belief and thus capable of protection within the terms of the Employment Equality (Religion or Belief) Regulations 2003. Please see my previous post on this high profile case.

Autoclenz  Ltd v Belcher & ors [2009] EWCA Civ 1046

A case on the distinction between employee, worker or self-employed.  The Respondents were car valeters.  All the factors usually considered in determining whether a person was employed or self-employed suggested they were employees. The “contract” they signed said they were “sub-contractors” but that did not reflect the reality of the situation.  The CA held they were employees.

Attridge Law v Coleman UKEAT/0071/09/JOJ

The EAT has confirmed that “associative discrimination” is covered under the Disability Discrimination Act 1995 (DDA).  In other words, a mother who sought flexible working from her employers in order to care for her disabled son, but whose employment was subsequently terminated, can bring a claim under the DDA as a result of being treated less favourably.

X v Mid-Sussex CAB   [2009] UKEAT 0220_08_3010

Another DDA case. Volunteers are not protected by the DDA or the EU Framework Directive.   

Abbreviations

ET = Employment Tribunal

EAT = Employment Appeal Tribunal

CA = Court of Appeal

Please contact me for further details on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

These summaries contain my understanding of the law.  They do not constitute legal advice and you should not act upon or rely upon anything contained in this summary (or anywhere in this blog) as legal advice.

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By Michael Scutt, 05/11/2009 10:35 am

For those of you on Twitter I am being twitterviewed tonight by 22Twts. If you haven’t come across one yet, a Twitterview is a series of (22) questions posed by Lance Godard and my responses, in real time, on Twitter.  Lance asks some really interesting and high-profile people to do his Twitterviews so I’m delighted to be asked to take part and be in such august company.

It starts at 20.00 GMT and please take a look when I will be revealing my deepest darkest secrets, or something, as well as talking about Dale Langley & Co and employment law.  I don’t think Hello or Ok magazines will be terribly interested though.

 You can follow me  = @michaelscutt  and the  twitterview can be found at @22twts and #22twts