It was wrong of the Forfeiture Committee to strip Fred Goodwin of his “K”. It smacks of a politically motivated knee-jerk reaction (as in knee to the groin) and does more to bring the honours system itself into disrepute than the actions of one man. He may have been guilty of incompetence or, more likely, recklessness, but that shouldn’t justify this action.

What about those peers who have been convicted of crimes – Lord Archer or Lord Taylor of Warwick, for instance?  Lord Black of Crossharbour (Conrad Black as was).  Why do they still have their peerages?

Charles Moore  in the Telegraph summed it up thus;

So far as anyone knows, Sir Fred Goodwin has not committed a crime, nor – the other criterion of forfeiture – has he been “censured/struck off etc by the relevant regulatory authority”.

He is not generically different from all the other Knights (and peers) of the big-bank Round Table who, in various ways, got it wrong – Sir George Mathewson, Sir Tom McKillop, Sir Victor Blank, Lord Stevenson of Coddenham, to name but a few. It is merely that we all happen to have heard of him. Should the whole lot be purged?

For the powers that be to be able to erase what they themselves have done is not a bracing corrective, but hypocrisy.

Morally, it is like those Stalin-era photographs in which leading comrades on the Kremlin balcony were airbrushed out once they had fallen from favour.

We need to keep the honours we have handed out so that we can carbon-date the folly of each age.

What this all demonstrates is the folly of a system that awards gongs to your mates, to be taken away when the government changes colour.  Let’s have honours for sportspeople, writers and artists and people who do good work in their local communities, but abolish for those who get them because of who they know or for doing their (high-level and well remunerated) jobs.

No related posts.

A Nail in the Coffin of the Honours System? originally appeared on Jobsworth by Michael Scutt on 01/02/2012.

In case it were needed, the Daily Telegraph today reported on a case where “laddish” behaviour in the workplace led to a substantial payout for the female Claimant, Miss Angelina Ashby, which included £15,000 for injury to feelings and £9,158 for loss of earnings.  Read the article for the details, but this case should serve as a reminder that this sort of behaviour just isn’t acceptable in the workplace.

Male workers made unpleasant jibes about her weight and appearance and viewed pornography online.  When she issued a grievance she was criticised for being too sensitive and “unmanageable”.  She won her claim for sex discrimination and constructive dismissal against her employers. There are no great surprises there.

However, two aspects of this story stood out for me from this report.  The first was that the employer worked on Ministry of Defence marine contracts, which must mean that at some point they had been through a tendering process.  Many (but perhaps not all) tendering processes for government and QUANGOs often require that the employer adheres to employment law best practice.  Was that the case here, as clearly, in this instance, what was going on was as far from employment best practice as you could imagine?

The second factor is that Miss Ashby lost her equal pay claim.  She was reportedly paid £13,500 per annum in her role as a sales executive, while three male sales executives were paid £24,000 and this was justified on the basis that they were “proactive”.

I wonder what this means?  That they simply brought in more business than Miss Ashby? I assume, although we are not told (and this is only a report in a newspaper and not a legal journal) that she brought her equal pay claim on the basis of “like work”, which means work which is of the same or broadly similar nature in which there are no differences of practical importance in relation to terms and conditions of employment”.  It will be interesting to know how the difference in this case was justified if it was other than simply based on commission earned.

No related posts.

Men Behaving Badly originally appeared on Jobsworth by Michael Scutt on 12/12/2011.

Amidst all the hullabaloo over the government’s plans to reform employment law,  one issue that hasn’t got as much of an airing as it might deserve is over mediation/conciliation.  In the Law Society Gazette yesterday an article stated that the government intends to promote mediation in the workplace.

Apparently less than 50% of employer respondents to the government’s recent “Resolving Workplace Disputes” had used mediation to resolve disputes, which is a number I find surprisingly high in fact.  The more interesting question though is at what stage did they use it?  I would guess that for many businesses mediation is only used when the lawyers suggest it as a means of settling a dispute and avoiding a trial.

In its response to the Consultation, the government is moving towards this by announcing it would consider whether all employment disputes should be made to go through ACAS before they can be issued at an Employment Tribunal and is also considering creating regional mediation networks.  How this would look and, more importantly, how it would be funded, is the crucial matter. How will ACAS cope with such a massive increase in its workload (it struggles to cope at the moment it seems) without substantial investment from the state?  Leaving that aside, in principle early mediation must be a good idea before disputes between employers and employees get too bitter and positions too entrenched.  The longer a dispute goes on the harder it can be to settle. Shifting the burden from the Tribunals onto ACAS will not be successful unless ACAS (or the mooted regional networks) are properly funded and supported.  If they are, it could help promote a fundamental change in the way employment disputes are resolved.

ACAS has been committed to workplace mediation and conciliation for years.  It runs a free conciliation service but how widely known is it? The government also wants to consult over introducing “protected conversations” into the workplace to allow employers and employees to speak freely about problems in their employment relationship without fear of it being repeated before an Employment Tribunal.  I think it would be unworkable in practice and will lead to more disputes and misunderstandings, not to mention satellite litigation over whether what was said was protected or not, than exist now.  But you can see that a mechanism that allows both sides to talk freely and at an early stage before each party hides behind its lawyers, would be welcome.  Workplace mediation could do that, particularly as the rules of mediation, where an independent third party comes in to mediate, usually involve the whole process being confidential and privileged from disclosure in subsequent litigation.

If a cost effective, quick and independent mediation service could be created that could intervene quickly in workplace disputes (because time will be of the essence) there would be no need to have protected conversations and the number of claims issued at ETs may well be substantially reduced.  The amount of management time involved in dealing with litigation would be reduced and harmony restored in the workplace restored sooner rather than later.  Of course, not all disputes will be capable of settlement in this way and will require litigation, but that is not a reason not to try at all.  Some people will want to have their “day in court”, but my experience as a Claimant solicitor is that the overwhelming majority of clients just want to get the dispute over and done with and get on with their lives.

Sadly I doubt it will happen because to work properly it would need a huge number of mediators to be available to do it and the funding won’t be available, especially in the current climate, to pay for them.  The mediation training industry continues to churn out large numbers of trained mediators, comparatively few of whom actually recover the cost of their training (at least that is what I tend to hear from mediators of my acquaintance).  Let’s not waste time on protected conversations, invest in workplace mediation instead.

As ever, comments are welcome.

Related posts:

1. Protected Conversations? Protecting Who?
2. Are They Having a Protected Conversation?

Mediations Not Protected Conversations? originally appeared on Jobsworth by Michael Scutt on 08/12/2011.

Sorry Guys, Not Under This Government

There have been many excellent blogs, articles and podcasts on the government’s proposals for the “most radical reform to the employment law system for decades” contained in its “Resolving Workplace Disputes: Government Response to the Consultation” Here is my regrettably belated contribution to the debate.

The full review can be read by clicking the link, but if you don’t want to wade through all 55 pages of the report, here are the headlines. Vince Cable, the Business Secretary also added in some further proposals in a later speech.

But is he really 100% behind these proposals?

Much of what has been suggested is still subject to further consultation and “calls for evidence”, thus extending the consultation process even longer.

It is proposed that the following reforms, billed as the most radical changes to employment law ever seen, will be introduced;

1. The qualification period for unfair dismissal claims will be increased from the current one to two years from April 2012, supposedly to increase business confidence and stimulate the economy
2. Compromise Agreements will be renamed “Settlement Agreements” and a “standard text” will be developed to streamline them.
3.  Employment Tribunals to be given a discretionary power to impose a financial penalty on employers that breach employment laws, based on the amount of the Tribunal award and be between a minimum of £100 and a maximum of £5,000. The award will be paid to the government not the employee.
4. All claims to be lodged with ACAS to enable the parties to settle the dispute through conciliation.  Only if the conciliation is unsuccessful or is refused will the claim be able to proceed to a Tribunal.
5. It is also proposed that a system of “protected conversations” will be introduced allowing employer and employee to discuss problems in the employment relationship without fear of the discussion being used against them later on in Tribunal proceedings.  The government will consult on this next year.
6. The government will consult on introducing fees for tribunal claims and also upon listing a case for a final hearing.
7. Tribunal procedure to be modernized and the current President of the EAT (Mr Justice Underhill) will be asked to carry out a fundamental review of the Employment Tribunals Rules of Procedure to make them less unwieldy, to be presented next year. Employment Judges will sit alone in Unfair Dismissal cases. The maximum limit on Deposit Orders will be increased from £500 to £1000 and the maximum amount of costs orders will be doubled to £20,000.
8. There will be a consultation on a new system of rapid resolution for low value, simple, disputes that may be “paper only” (ie without a need for oral hearings, judges – or lawyers?).
9. The ACAS Code of Practice on Disciplinary and Grievance procedures to be reviewed with a view to simplifying the current dismissal processes.
10. Compensated No Fault Dismissals to be considered for firms with fewer than 10 employees.
11.  The government is calling for evidence on whether the TUPE legislation can be simplified, as it is perceived that it “gold-plates” the European Regulations that gave rise to TUPE. The call for evidence opened on 23^rd November and continues to 31 January 2012.
12. There is also a call for evidence on whether the law on collective redundancies be reviewed, to shorten the length of consultation periods.
13. The “loophole” in whistleblowing cases created by the case of Parkin v Sodexho (which allowed employees to claim that breach of their own employment contracts was an event capable of giving rise to a “Protected Disclosure”) is to be abolished.
14. Criminal Records Bureau (CRB) checks are to be made portable between employers.
15. The law on the National Minimum Wage will be merged and simplified.
16. Maternity Leave/Flexible Working – to be modernized and made more responsive to parents’ needs but without costing business more.
17. The recently introduced Agency Workers Regulations are to be reviewed in 18 months time.

Some of these proposals are to be welcomed (such as the reform ofwhistleblowing legislation), some may never see the light of day (is the government really going to impose what will come to be seen as a tax on firms that breach allegedly too onerous red tape?) and some are badly misconceived.

For instance the problem with Tribunals is the inefficiency of their administration rather than the rules governing them. They already have the power to impose costs against a party acting unreasonably, but rarely exercise it.    Introducing fees for Claimants may or may not discourage spurious claims but it will certainly prevent those people on lower incomes with genuine claims from being able to access justice.  Why not make more use of Deposit orders?

I have thought for a while that there is a deeper agenda here.  The Courts and Tribunal systems have been merged, ET rules of procedure have been moving towards the Civil Procedure Rules in tone and substance for some time, and now unfair dismissal cases will be heard by a single Judge alone.  As Darren Newman writing in November’s Employers Law said “The fact is that the current employment tribunal system is just not geared up to do  this [collect and refund fees] and considerable extra resource and training would be required to put it in place“.  Agreed, but that doesn’t need to be an issue if you have a full and complete merger between the two systems.

The emphasis on mediation/conciliation is to be welcomed, but will ACAS be adequately resourced to do the massive job the government intends to ask it to do?  Has the government considered how much it is asking ACAS to do? Conciliation is a process that takes time and skill and requires both sides to be reasonable.  Forcing people to mediate is not a solution: the participants must want to do so.  As a firm we spend 90% of our time trying to resolve disputes and only 10% actually in court, which is probably representative of most employment lawyers.

The last government tried to reform disciplinary and grievance procedures with some very strict procedural rules, which only led to more cost and delay for all parties.  Subsequently they had to be repealed and substantially amended five years later. What might appear at first glance to be a sensible idea (e.g protected conversations) will need to be very carefully drafted if they are not to bog employers and employees down in lots of procedural arguments.

The proposal to exempt micro-businesses from employment law is worth a cautious welcome because a Tribunal case or litigation can destroy a small business, but how will a small firm be defined? Micro firms will not be exempted from discrimination laws so it is worth asking to what extent this reform would improve the lot of micro firms.

There is still much consultation and talking to be done before we know the outcome of these proposals.  Some will probably not come into force, but will allow the government to present itself as having the interests of the business community at heart, nevertheless.  Others, such as the increase in the unfair dismissal limit are very unwelcome, will damage careers and will probably make life harder for employers because employees will seek to bring discrimination claims instead.

In trying to polish its pro-business credentials the government is in danger of introducing steps that have no demonstrable economic benefits, will make solving disputes potentially much harder and will be seen as significantly restricting many of the poorest and most vulnerable in society from gaining access to justice. This may well be billed as the most radical reform of the  employment system for decades, but that doesn’t prevent it from being a massive own-goal as well.

Links to Some of the Articles, Blogs and Podcast I’ve enjoyed  reading on the subject

Stephen Levinson – New Law Journal

XPert HR’s podcast

Daniel Barnett’s search for the best Employment Law Joke

Related posts:

1. Review of 2011 – Radical Reforms, Unprotected Conversations & More
2. Why Employment Law Reforms Will Harm Gender Equality in the Workplace

The Most Radical Employment Law Reforms for Decades? Or a Spectacular Own-Goal? originally appeared on Jobsworth by Michael Scutt on 05/12/2011.

Banks are facing a rising tide of stress at work claims, according to Reuters yesterday. The report refers to anecdotal evidence by GQ Employment Lawyers to the effect that the number of “stress related lawsuits” is on the increase, but doesn’t say what type of lawsuits, nor give any statistics to back up the assertion.

 Never mind, the Health & Safety Executive’s own statistics for 2010/11 state the following;

“The number of new cases of stress, depression or anxiety has fallen from an estimated 254,000 in 2001/02 to 211,000 [in 2010/11]” *

Whether that downward trend will continue in 2011/12 or be broken as the report suggests we will have to wait and see. In my view it is unlikely that we will see a tidal wave of stress claims in the courts or Tribunals for various reasons – see below – but because when the next recession, which looks inevitable now, strikes it will be accompanied by job losses.  The CIPD produced a report yesterday predicting a “slow, painful contraction” in the jobs market in Quarter Four this year as many employers impose a hiring freeze. It isn’t actually predicting a rise in redundancies merely that once you’re out of a job you may find it hard to get another one.

I’ve acted for many employees over the years with occupational illnesses or injuries (including stress cases) and the one factor that usually concerns most, if not all of them, is the reaction of their employer if they bring a personal injury claim or assert their legal rights in some way.  Bankers are prey to this concern just as much as any other workers, arguably more so if they think it might jeopardise their annual bonus. The other concern, which should be ameliorated by the banning of pre-job offer health enquiries by employers under the Equality Act but probably isn’t, is that having a lengthy spell off work with stress will render a job-seeker “damaged goods”.

If I‘m wrong and a flood of stress at work claims does arise there’s another important consideration to bear in mind.  It’s relatively easy to commence a claim, start a protocol or issue proceedings, but quite another to win and recover compensation. Most employers faced with a stress at work claim aren’t likely to simply roll over and pay up.

There are several possible claims; in negligence for personal injury, for harassment under the Protection from

Harassment Act 1997 (PHA), or for injury to feelings at an Employment Tribunal if the stress is caused by harassment on the grounds of sex, race, disability, age, religious belief or sexual orientation (known as “Protected Characteristics”) . All it says is that claims from financial services staff are increasing, in the face of challenging economic conditions, long working hours, the threat of redundancy as well as being the occupation that currently everyone loves to hate (well, it gives estate agents and solicitors a break I suppose).

To sue for personal injury in the tort of negligence (which is the type of claim you would make if you suffered a whiplash injury in a car crash or a back injury from lifting something heavy at work) a Claimant has to have suffered a medically recognised illness or injury.  “Mere” stress won’t be enough, it has to go beyond that and will need to be verified by a medical practitioner, preferably a Consultant Psychiatrist.  That will be expensive.

The first legal issue is whether the illness/injury was reasonably foreseeable to the employer, in other words would the reasonable employer have realised, or should they have realised, that an employee subjected to those particular working conditions would suffer a psychological injury or illness.  That can be a difficult hurdle to overcome because mental illness tends to be “invisible” and most people don’t admit they have a problem until they become very unwell.  An employer is entitled to view his/her staff as being ordinarily robust and able to deal with the ups and downs of the workplace unless they have particular knowledge to the contrary.  It is in those cases where an employee has suffered mental illness, notified the employer of it, been off work as a result and then returned only to have another breakdown later on that have tended to be successful with claim for personal injury.

The second main problem tends to be in proving that the illness/injury was caused by or contributed to by the actions of the employer.  That usually means a forensic examination of the Claimant’[s medical records to see if they have any other stressors in their life – such as a prior history of mental illness, or have been going through a divorce, in trouble with the police etc.

Finally, these type of claims tend to be very expensive to put together, usually vigorously contested by the employer’s EL insurer and, because the claim is taken through the Court (High or County), there is a risk of losing and having to pay the other side’s costs – at least until the Jackson litigation reforms are introduced and we have “Qualified One-Way Costs Shifting”.

Claims under the PHA are, perhaps, slightly easier if the Claimant can show a near criminal standard of harassment from, e.g. their line manager, but that sort of claim doesn’t help an employee who is grossly overworked and trying to do the work of three people.  The ET claims for harassment and victimisation also require a “Protected Characteristic” to be the motivating factor in the employer’s behaviour.

Personal injury law is very unhelpful to people suffering from mental illness caused by the workplace. There won’t be a great increase in the number of claims going through the courts because the substantive law hasn’t changed.

• HSE Annual Statistics 2010/11 p.5

Related posts:

1. Seven Ways for Employers to Avoid Stress at Work Claims
2. Stress at work
3. Seven Top Stress Management Tips for Employees

UK Banks Facing Rising Lawsuits over Stress? Really? originally appeared on Jobsworth by Michael Scutt on 15/11/2011.

The Head of the UK Border Force, Mr Brodie Clark, resigned on Tuesday, reportedly in reaction to comments by the Home Secretary that blamed him for a relaxation of biometric and anti-terrorism checks over the summer.  Mr Clark had been suspended a few days previously over the matter.

He therefore resigned and said he intends to claim constructive dismissal. Constructive Dismissal is a claim for breach of contract, specifically wrongful dismissal (it may also be an unfair dismissal, but that is a separate claim). More specifically it is defined in the Employment Rights Act 1996 at s.95(1) (c) as an employee resigning

“in circumstances such that he is entitled to terminate [the contract of employment] without notice by reason of the Employer’s conduct”.

 The employee effectively is saying that the employer has fundamentally broken the terms of the employment contract and is accepting that breach by resigning in response.  That could either be a written term (i.e failure to pay salary for instance) or an implied term, of which there are several.  Mr Clark was suspended, no doubt whilst an investigation into his alleged conduct was carried out, but because most disciplinary procedures are not contractually binding, he probably can’t rely on breach of it and suspension isn’t of itself a disciplinary measure anyway.

He is probably relying on the implied term of mutual trust and confidence in claiming the employment contract has been repudiated. That is an unwritten term that exists in every employment contract and where an employer, without reasonable and proper cause, acts in “a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee” such as treating the employee in a degrading or demoralising way, or bullying or harassing an employee (especially in public) that may well constitute a fundamental breach of the term.

Because Mr Clark was on a fixed term contract, he will probably claim for the unexpired portion of salary and benefits from the date of the repudiation of his resignation to the date the contract would have expired.  How much he gets will therefore depend on how many months his contract had to run.  At a reported salary of £130,000 per annum it could be a fairly large sum of money.  As a breach of contract claim and probably worth more than £25,000 (the upper limit for breach of contract claims in the ET) he will bring it in the High Court.  He may also bring a claim for unfair dismissal, but that would be limited to the upper cap on compensation of £68,400 plus a Basic Award based on age and length of service.

The burden of proof in a wrongful dismissal claim is on the Claimant, Mr Clark.  If he can show that he resigned in response to the alleged breach by the government (and that there wasn’t some other, as yet unknown, fact in the background) then his looks like a good claim.

Politicians of both main parties have got themselves mixed up in messy employment disputes in the past.  Most recently Ed Balls waded in to the Baby P tragedy at Haringay Council by sacking Sharon Shoesmith, exposing the tax payer to a potentially very significant compensation award..  Before that, in 1995, Michael Howard sacked the then governor of the Prison Service Derek Lewis for allegedly failing to meet targets on prison escapes. He sued and won a substantial award.  Click here for an interesting analysis on the Whitehall Watch blog drawing a comparison between the May and Howard situations.

 Plus ça change, plus c’est la même chose? Perhaps politicians should learn not to shoot from the lip in these situations in future?

Related posts:

1. Kevin Keegan beats Newcastle United

The Brodie Clark Resignation originally appeared on Jobsworth by Michael Scutt on 10/11/2011.

The headlines were grabbed yesterday by the leak of the Beecroft report’s proposal to abolish unfair dismissal in capability cases. Only slightly less newsworthy was Nick Clegg (the Lib Dem Deputy PM, leader of the supposedly caring party of government) announcing proposals to allow employers to have “protected conversations” with employees.  This is all part of the same agenda to cut red tape for business and to allow employers to get rid of underperforming workers and, interestingly, to discuss retirement with older workers, without the fear of being hauled off to an ET.

Is Clegg protected?

At the moment some employers try to have “without prejudice” conversations with an employee where things are going wrong but, strictly speaking, without prejudice only provides privilege from disclosure if it is an attempt to settle a dispute. An initial discussion to say “you’re not up to the job” or “here is a compromise agreement, take it and leave or otherwise we’ll discipline you” wouldn’t be covered.  A “Protected Conversation” presumably intends to cover these preliminary discussions prior to the actual settlement negotiations, if it ever gets that far.

Other employers might want to suggest having an “off the record” conversation, but nothing is ever really off the record and this only works if both parties want it to.  So, as a method of dispute resolution or even dispute prevention, in principle it isn’t a bad idea.  I just wonder how it would actually work in practice.

Rick, from Flip Chart Fairy Tales has written an excellent blog on the subject – click here – and I won’t repeat the points he makes. XPert HR has also blogged giving 15 reasons why protected conversations won’t work. Reason number 8 is worth careful consideration: you can just see this being abused. Reason number 3 is also very valid.  The abolition of retirement is not yet a year old and already the government is looking for ways to circumvent it.  Expect challenges under European legislation if protected conversations are brought into law.

The government should have learned its lesson from the 2004 statutory dispute regulations – on paper they looked simple enough but in practice were a complete nightmare and had to be abolished in 2009.  What often looks like common sense as a headline grabbing initiative, actually proves unworkable once put into practice. Employers will probably come to find them not the solution  they thought them to be once the actual details are in place – which will be hugely complicated and will need a whole HR department to make them work. Far from cutting red tape it will increase it.

We’re promised a “major package of employment law in the autumn aimed at helping business, including reform to employment tribunals” – it will be well worth the wait.

Related posts:

1. Mediations Not Protected Conversations?
2. Are They Having a Protected Conversation?

Protected Conversations? Protecting Who? originally appeared on Jobsworth by Michael Scutt on 27/10/2011.

Twitter, well the bits of it I frequent anyway, have been abuzz with comments on the leaked Beecroft report which proposes abolishing unfair dismissal in capability cases.  I blogged on it this morning – click here.

Amidst all the tweets announcing the news there were some interesting and amusing comments, which I’ve collected below.  Most tweets I have seen are against the plans, a few make the point that the real issue is one of management and a few support it.  This is only a brief snapshot and I didn’t set out to try and gauge public opinion, although it seems those in favour are in the minority.

Senior Lib Dem and unions condemn proposal to scrap unfair dismissal http://t.co/u9hpRGyS

26/10/2011 11:47 am via TweetDeckReplyRetweetFavorite

@GdnPolitics

Guardian politics

Unfair dismissal law protects people who've been dismissed UNFAIRLY. Anyone wanting to scrap that law, ipso facto, supports unfairness.

26/10/2011 7:23 am via Twitter for iPhoneReplyRetweetFavorite

@garyslapper

Gary Slapper

Lawyers slam government plans to restrict unfair dismissal claims http://t.co/5HazNNaV

26/10/2011 1:27 pm via bitlyReplyRetweetFavorite

@TheLawyermag

The Lawyer

RT @paulcall1: Time to have a "protected conversation" and fire this govt without compensation? #ukemplaw

26/10/2011 12:47 pm via Twitter for iPhoneReplyRetweetFavorite

@JoEmpLawyer

Joanna Martin

Economy will only recover if I am allowed to act outside the band of reasonable responses. #ukemplaw #fail (may contain satire)

26/10/2011 9:49 am via HootSuiteReplyRetweetFavorite

@MrsMarkleham

Mrs Markleham

Govt. looking at scrapping unfair dismissal -one way of ending dispute about proposed Employment Tribunal fees. #ukemplaw

26/10/2011 9:52 am via webReplyRetweetFavorite

@kerry_underwood

Kerry Underwood

Sacking employees is like doing housework - Should unfair disimissal laws be scrapped? - http://t.co/bUTvlMHR #ukemplaw

26/10/2011 9:43 am via webReplyRetweetFavorite

@MattHuddleson

Matt Huddleson

Can everyone calm down please, this report will be scrapped #ukemplaw

26/10/2011 9:34 am via Twitter for iPhoneReplyRetweetFavorite

@deej267

Darren Smith

RT @MJCarty: Great post! #hrblogs #ukemplaw RT @FlipChartRick: Abolishing unfair dismissal will achieve nothing http://t.co/wUTTYiZF

26/10/2011 8:16 am via TweetDeckReplyRetweetFavorite

@DazNewman

Darren Newman

Instead of Compensated No Fault Dismissal we shd do more of what @Queen_UK refers to as "Motivational Bollocking" #hr #ukemplaw

26/10/2011 8:03 am via HootSuiteReplyRetweetFavorite

@ARCHONemplaw

Archon Solicitors

Thing is, although the 'compensated no fault dismissal' is fiendish and wrong - I can at least see how it would work. #ukemplaw

26/10/2011 7:27 am via TweetDeckReplyRetweetFavorite

@DazNewman

Darren Newman

RT @TarunTawakley: Thinks Mr Beecroft's report was leaked by the govt so planned increase to service requirement for UD appears a compro ...

26/10/2011 6:47 am via Twitter for iPhoneReplyRetweetFavorite

@DebbieBrooks77

Debbie Brooks

RT @LaurenREdwards: It's the Coalition's economic policies that are undermining growth, NOT unfair dismissal laws http://t.co/PxSt1VDU

26/10/2011 10:34 am via Twitter for iPhoneReplyRetweetFavorite

@martinhume

Martin Hume

Now a new report commisioned by the PM suggest scrapping unfair dismissal completely for performance issues - what next David the workhouse?

26/10/2011 10:25 am via webReplyRetweetFavorite

@Tacticks

Steve Ferns

PM wants to change rules for employer to chuck people out for being lazy. I agree, problem is define lazy- still be unfair dismissal claims

26/10/2011 6:47 am via Twitter for iPadReplyRetweetFavorite

@Lord_Sugar

Lord Sugar

"I think unproductive workers should lose their right to claim unfair dismissal!" said Roberto Mancini to Carlos Tevez

26/10/2011 11:17 am via webReplyRetweetFavorite

@AndyRTodd

Andy Todd

I hope EM goes on unfair dismissal stuff today. Cld be both toxic for govt and divisive for Tories. As well as being rather outrageous idea.

26/10/2011 11:00 am via TweetDeckReplyRetweetFavorite

@hopisen

Hopi Sen

@djnffc you'd be amazed what you have to do to actually get fired. Lazy scum are protected or it's 'unfair/constructive dismissal'

26/10/2011 10:39 am via Twitter for BlackBerry®ReplyRetweetFavorite

@mason_tweet

mason

Unfair dismissal rule change would boost arse-kissing, enthuse employers http://t.co/elIKAohW ( #satire #humor #lol )

26/10/2011 10:40 am via Tweet ButtonReplyRetweetFavorite

@satiredaily

The Daily Satire

Call to ease unfair dismissal law - http://t.co/AZuLSlfzIt's called 'Performance Management'. Do the job you're paid for

26/10/2011 10:36 am via BBC News iPhone AppReplyRetweetFavorite

@_purplekitty_

Kat

Unions condemn report calling for scrapping of unfair dismissal - The Guardian http://t.co/S3UKjWJs

26/10/2011 10:35 am via twitterfeedReplyRetweetFavorite

@ukworkersnews

UK Workers News

BBC reporting that changes to law unlikely. http://t.co/bqNu9KVt However, ET stats being misused again at bottom of article. #ukemplaw

26/10/2011 1:55 am via webReplyRetweetFavorite

@EmploymentBar

Jamie Anderson

Related posts:

1. Do you Twitter?
2. 40% of UK Employees Criticise Their Bosses on Facebook and Twitter

The Beecroft Report: The Twitter Response originally appeared on Jobsworth by Michael Scutt on 26/10/2011.

She's not the only one getting tupped

The front cover of The Daily Telegraph today reports on how Wimpole Hall farm is setting up a “Ram-Cam” which will follow Paolo (an 18 month old ram) while he goes around mating on the farm.  The headline story though is “Give firms freedom to sack their slackers”, which discloses the existence of a confidential Downing Street report which recommends abolishing the law of unfair dismissal, thus being the second story about getting shafted on the Telegraph’s front page today.

The proposal comes from the Beecroft report, which David Cameron has commissioned to review UK employment law.  It identifies Britain’s “terrible” employment laws as undermining economic growth because it is too difficult and time consuming to sack “slackers”.  According to the Telegraph

“The report says that the unfair dismissal rules have made public bodies “reluctant to dismiss unsatisfactory employees”.”[They] therefore accept inefficiency that they would not tolerate if dismissal of unsatisfactory employees was easier”.

And

“A proportion of employees, secure in the knowledge that their employer will be reluctant to dismiss them, work at a level well below their true capacity; they coast along”

The solution is to replace the rules on unfair dismissal with a concept called “Compensated No Fault Dismissal”, which would “allow employers to sack unproductive staff with basic redundancy pay and notice”.  However, in a seemingly rare moment of true insight Mr Beecroft is said to concede “that employers could then fire staff because they “did not like them”.  The wisdom of Solomon indeed!

This proposal, which is said to be favoured by No 10 and the Chancellor, is like many proposed reforms of supposedly unpopular laws.  It might look well and good from a high level, but just wait until it is you, or your wife, son, daughter, parent who is said to be slacking and thus sent packing.  It’s all very well when it’s someone else who is on the wrong end of the stick, but that is the essence of bad law. This is a fundamentally wrong proposal.

Currently there are only a limited number of fair reasons under s.98 of the Employment Rights Act 1996 for dismissing an employee.  Capability (which is what seems to be under threat here) is one, Conduct another and then Redundancy, “Some Other Substantial Reason” or if the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.  Presumably the latter four would continue to exist.

To suggest that Capability would be replaced by “Compensated No Fault Dismissal” based on a redundancy payout is nonsense.  The roles aren’t redundant and, secondly, if it is proposed that the limit of compensation be restricted to the size of a redundancy payout (£400 or £600 per complete year of service) no one is going to be properly compensated.  Instead all this will achieve is that aggrieved employees will look for ways to bring whistleblowing or discrimination claims to avoid this regime (as they will if the qualifying period for unfair dismissal is increased to two years continuous employment) thus involving employers in more cost and expense.

Mr Beecroft’s concession that this would allow employers to get rid of the staff they don’t like is accurate.  In my experience as a Claimant employment lawyer personal dislike/animosity between line manager and employee is often the root cause of conflict in the workplace, even if it is ultimately dressed up as capability, conduct or redundancy.

The final report is said to be released next month.

Related posts:

1. Unfair Dismissal: What if the Employer Can’t Pay?
2. Riots, Looting and Unfair Dismissal
3. Unfair Dismissal Rights to be Restricted?

Unfair Dismissal to be Abolished? originally appeared on Jobsworth by Michael Scutt on 26/10/2011.

This government is getting good at sticking the boot into employment legislation without then actually doing much about it.  It’s time in office has been characterised by reviews over this and that – civil justice, legal aid, red tape – as well as reforming employment tribunal practice and procedure.  The supposed “gold-plating” of Euro-legislation is to be reviewed and there is even talk of limiting discrimination awards.  Now the latest emanations from the corridors of power suggest that not only may plans to extend flexible working to all workers and to extend maternity and paternity pay be scrapped but the existing rights might be rolled back. . Let’s hope that it is just another kite being flown round Whitehall and Westminster to be allowed to fall quietly and gracefully to the ground when no one is looking.

This is all in the name of reducing the bureaucratic burden on business. It is, in fact, short-sighted.  Yes, employment law is complex but so are modern peoples’ lives.  Flexible working is a necessity for many people who are trying to juggle home and work, just ask any parent with school age children or any (adult) children caring for an elderly parent(s), of whom there must be an increasing number of the latter.

The Chartered Institute of Personnel Professionals has produced research to suggest that 36% of employees would like the ability to work flexibly (i.e. from home) on a regular basis. Working flexibly is said to be good for employee well-being.  No doubt employers  will want comfort that productivity will be maintained, but any employee having too many “duvet-days” when they should be working from home will soon be discovered and can be dealt with accordingly.  That should not be a reason to deny the ability to work flexibly to other employees.

And, isn’t an employer that offers flexibility in working arrangements likely to be a better place all round to work?

Restricting employees’ rights to seek flexible working is not in tune with the 21^st century and trying to turn the clock back will only lead to more discontent in the workplace and more claims being brought before the Employment Tribunal, which would mean more work for lawyers.

And we wouldn’t want that would we?

Thanks to Personnel Today for bringing this to my attention.

No related posts.

No More Flexible Friend? originally appeared on Jobsworth by Michael Scutt on 19/10/2011.