It didn’t meet with the same critical acclaim last week that the film of  nearly the same name – The King’s Speech – did a few months ago. No one seemed very impressed by it, little detail was provided and what we have been promised has been mooted already.  The business lobby were underwhelmed by the lack of specifics. The Government’s public discomfort continued as they managed to please no one. Business didn’t like the lack of detail and everyone else seemed underwhelmed. Ed Miliband had a good day, saying,

“No change, no hope – that is the real message of this Queen’s Speech.“

 and

“In two years, you have gone from David Cameron to David Brent. That’s the reality“

Rather good, but isn’t it a rehash of Vince Cable’s memorable description of Gordon Brown as Mr Bean a few years back?

David Brent being, of course, the line manager from hell.  The sort of person who would give lawyers endless work if he were conducting protected conversations, or trying to conciliate disputes.

 It’s not surprising; the same old tired claims about needing to reform employment law to stimulate the economy.  So, we’ll get the Enterprise and Regulatory Reform bill, which will require all Claimants to lodge their claims with ACAS and consider early conciliation.  The Bill will also streamline employment tribunal procedures;

“Legislation will be introduced to reduce burdens on business by repealing unnecessary legislation.”

Expect the measures that have been trailed and consulted on already to be in it: ET issue fees, protected conversations, maybe even abolishing unfair dismissal claims for small businesses.  The Beecroft report is said to be back in favour. Yawn.

The new Bill will also ring fence the retail banking functions of investment banks to protect us from the worst excesses of so-called casino capitalism. And, on a day when Commerzbank lost its case against 104 of its employees, the government will legislate to restrict bankers’ bonuses.

It’s not all about restricting or removing rights though. A Children and Families Bill will extend flexible working for parents. As a parent myself I welcome anything that makes life easier for people trying to balance work and home life, but if you want to find an area of employment rights that causes employers, especially smaller businesses, a headache on a daily basis it is flexible working, not unfair dismissal or discrimination claims. Even so, it’s to be welcomed.

 The Commerzbank decision was an interesting one. I have not seen the Judgment yet but it seems that Mr Justice Owen made the right (but nonetheless still brave) decision to hold that Commerzbank must honour its contractual obligations to those employees to whom its predecessor Dresdner Kleinwort had promised bonuses. The Bank was not able to rely on the downturn in the economy and the worst results in its history to justify a “material adverse change” to allow them to vary those contracts. The bonuses due ranged from £12,000 to £2mn. In the end it seems to have been decided on straightforward contract law principles and fact rather than novel legal principles.  Commerzbank were not able to persuade the Judge that the bonuses were discretionary. The Guardian reported a Commerzbank spokesman as saying;

“The main argument revolves around whether the announcement on 18 August amounted to a legally binding agreement. It is the bank’s submission that there is every prospect that the court of appeal would come to a different view on this matter”

So, it’s not over yet. Will there be “copycat litigation” ?  Probably, but this was a dispute which had its origins in the 2008 financial crisis and the landscape is different now, due to the FSA’s Financial Remuneration Code which restricts the size of the largest bonus payments. Undoubtedly though, more scrutiny will be put on what is said by line managers when the “B” word comes up.

No related posts.

The Queen’s Speech originally appeared on Jobsworth by Michael Scutt on 15/05/2012.

Employers in the UK might think are vulnerable to any manner of speculative or vexatious claims from employees, however they should be grateful they aren’t in Australia, where a recent case will have the Institute of Directors and Tory MPs spluttering into their copies of the Daily Telegraph.

 Roll on Friday, the purveyor of legal news and salacious gossip, carried this story (which also featured in the Australian Telegraph) about an HR executive required to travel for a meeting and to stay overnight in a motel.  During this overnight stay she had sex with a male acquaintance (not a work colleague), which led to her sustaining facial injuries and psychiatric injury from a falling light fitting.

She sued her employer on the basis that the injuries had been sustained “during the course of her employment”.  RoF reports the rationale for this thus;

“Justice Nicholas stated that she didn’t have to show that her employer had encouraged or induced her to have sex, “If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation“. And as sex is a lawful activity, she should be compensated for her injuries.”

I’m wondering if the court was asked to consider whether any degree of contributory negligence applied to her for not checking that the chandelier was safe before she started swinging from it.

Thanks to @taruntawakley whose tweet brought it to my attention.

Woman injured having sex on work trip was conducting activities in course of employment and compensated http://t.co/pgTDVh2b #ukemplaw #hr

20/04/2012 5:11 pm via webReplyRetweetFavorite

@TarunTawakley

Tarun Tawakley

Related posts:

1. One million suffering from brain injuries in the UK every year

Employer Liable for Employee’s Injuries Sustained During Sex Session originally appeared on Jobsworth by Michael Scutt on 21/04/2012.

Blimey or, as Sir Alex Ferguson put it years ago “Football, bloody hell”, or as The Times journalist Simon Barnes put it “Real life, bloody hell”.  I am referring, of course, to the resignation of Fabio Capello as England manager yesterday. Presumably in response to my blog article on the subject

There was always going to be one winner, if the FA were prepared to stand up to him, as they were.  John Read of XPert HR left a comment on my previous blog about Capello saying that he thought the FA had a clause in the Managers contracts which gave them final say over team selection matters, a fact which was confirmed by former FA Chief Executive Mark Palios on the Today programme on Radio 4 this morning.  Assuming that it had not been removed from Capello’s contract he clearly did not have a legal leg to stand on and his best hope of salvation was that the FA would back away from the prospect of losing their manager  just four months short of Euro 2012.  Thankfully they didn’t and stuck by their earlier decision.

The more interesting question is to what extent did the FA manufacture this situation to rid themselves of a manager they clearly had no great faith in?  The acquittal of Harry Redknapp from his tax evasion case  the very same day is too coincidental to my mind to have been a factor in the FA’s decision to stand up to Capello.  I’ve always been a believer in the cock-up theory of history, as opposed to the conspiracy view and if anyone can cock anything up, it is the FA.

However, perhaps on this occasion, they might just (fortuitously) have got it right. Judgment, Luck, More, by, than: please rearrange to make a familiar phrase.

P.S As an Arsenal fan I’m hoping that Harry Redknapp will be installed as full time England manager as soon as possible; this evening would be fine.

Related posts:

1. Fabio Capello: In Breach of Contract?

Capello a-go-go originally appeared on Jobsworth by Michael Scutt on 09/02/2012.

The ability of the FA to shoot itself in the foot never ceases to amaze me, but I must admit to feeling justa little sorry for them over the John Terry affair.

The Chairman, David Bernstein, in my view, made the right decision in stripping Terry of the England captaincy, but then had the decision attacked by Fabio Capello, the Head Coach who said;

“I completely disagree with the FA about the John Terry decision and I have told that to the chairman. … The court will decide. It’s going to be civil justice, not sports justice, to decide if John Terry committed the crime that he is accused of. … I considered and still consider Terry as the England captain. I think we first should wait for the trial conclusion.”

 No ambiguity there then.  I suspect his reaction has more to do with trying to assert his waning authority than putting forward a reasoned argument on the actual issue itself (although it does call his judgment on that issue into question) and it brings him into conflict with his employers.  It was surely unwise of Capello to go public with his views, even if he did privately disagree with the FA’s decision.  David Davies, the former FA Executive Director, suggested Capello may have breached his contract of employment.

Capello may well be in breach of contract.  I would expect his contract to contain a clause saying that he won’t make any derogatory or detrimental comments about his employer and whilst his words are not derogatory, they are certainly detrimental to the FA because it flags up a big difference of opinion between manager and Board in one of the most high-profile businesses around in the run up to a major tournament.

More fundamentally, Capello may have broken the implied term of mutual trust and confidence in stating his disagreement so clearly. He must have known his words would cause embarrassment.  Perhaps he doesn’t care?  Maybe Capello doesn’t relish the prospect of another summer of high expectations and shattered dreams? If so, trying to get sacked by your employer would be one quick way out, but it doesn’t seem likely.  The problem for the FA now is what should they do about Capello’s outburst?  If they pretend it never occurred they look weak and if they do assert their authority they run the risk of being without their manager in the run up to Euro 2012, either because they have to sack him or he resigns. Damned if they do, damned if they don’t: as usual.

On the Terry issue itself there has been a lot of debate over whether he should have been dismissed before his criminal trial, with many people saying that he should be held innocent until proven guilty.  I think that is too simplistic and fails to take into account both the highly public and highly personal nature of the England captaincy.  For instance, there is a need for all members of the England team to set a good example and in Terry’s case that is called into question.  His commitment to the FA’s Respect agenda and supporting the anti-racist work it has been doing over the last few years is also compromised.

Further,  can a man who is accused of racism effectively lead a dressing room that contains black players, including the brother of the man he is accused of insulting? It’s all very well to talk about players being professional, but some issues run too deep.

There is also no principle which says employers must not take disciplinary action before criminal proceedings have been completed: see this very useful piece on the xpert HR blog.

A final thought: What is John Terry’s employment status with the FA?  Is he an employee or a worker? The position of England captain is presumably an honorific one and he hasn’t (yet) been deselected for England, so don’t expect him to trundle off to the nearest Employment Tribunal to seek reinstatement.

Related posts:

1. Capello a-go-go

Fabio Capello: In Breach of Contract? originally appeared on Jobsworth by Michael Scutt on 07/02/2012.

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?

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