It was today announced that the Coalition Government, following consultation with the Institute of Directors has decided to consult on a new means of resolving workplace disputes,

The scheme has been trialled in the United States where it has proved to be instrumental in reducing the amount of employment related litigation.  It is said to be the most successful method of Alternative Dispute Resolution ever seen and both David Cameron and George Osborne are known to be giving it careful consideration.  Vince Cable, the Business Secretary, was not available for comment.

No related posts.

Government Introduces New Fast-Track Dispute Resolution Scheme originally appeared on Jobsworth by Michael Scutt on 22/12/2011.

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.

Last week the government announced various plans for reforming employment law. I’ll be writing about them shortly…

I wonder if the employee above has just been made aware of his “Compensated No Fault Dismissal” package?

Related posts:

1. Protected Conversations? Protecting Who?
2. Mediations Not Protected Conversations?

Are They Having a Protected Conversation? originally appeared on Jobsworth by Michael Scutt on 01/12/2011.

Back in the middle of the last decade there were a number of cases involving agency workers (Dacas, James v Greenwich) etc that tried to deal with the gaping chasm suffered by temporary workers who had a contract with the agency but were working with the end user. If the end user terminated their employment (say for reason of redundancy) the worker couldn’t bring a claim for unfair dismissal against either the end user (because they weren’t employed by them) or against the agency (because they didn’t make the decision).  The Courts tried to be creative and imply a contract between the worker and the end user but it was not satisfactory. The plight of agency workers came to the fore and led to negotiations between government, the unions and business, leading to these Regs, which are only in force thanks to Europe. They aim to make life fairer for agency workers in the workplace.

Click here to listen to the debate on the Today programme with John Humphreys earlier this week talking about them.

The Department for Business Innovation and Skills has published very helpful guidance on the Regs and is well worth a read.

For a briefer summary take a look at ACAS’s summary here

 Here is my take;

The Regs apply to people recruited by recruitment agency and employed by them but then sent to work for another business (the end user). So, if a recruitment consultant introduces an employee to a business but that person is then directly employed by the end user the Regs. don’t apply. Workers on fixed term contracts who are paid between assignments are not covered by these Regs., but instead are covered by the Fixed Term Employees (Prevention of Less favourable Treatment) Regulations 2002 .

So what do the Regs do?

The AWR does the following from the moment the worker starts work;

-        Gives a right to equal treatment in respect of on-site  staff facilities, e.g. use of canteen, transport services and child care facilities

-        The right to be notified of any vacancies within the hiring company

However, it is after 12 weeks service that the full provisions kick in granting the agency worker the right to equal treatment in respect of pay and holidays. In other words an employer must give the same pay and conditions to an agency worker as they would to an employee they would have directly employed. The agency worker has to be compared with a directly engaged employee doing a similar role. The 12 weeks qualification period starts from 1^st October so the Regs won’t take effect retrospectively.

Pay is defined as including any “fee, bonus, commission, holiday pay or other emolument referable to the employment whether payable under contract or otherwise”, meaning that non-contractual but regular payment might be caught on the basis of custom and practice – say a bonus at Christmas if that is the usual practice.

Conditions refers to the same working hours, rest breaks and rest periods, annual leave and time off for ante natal appointments.

There are, as you might expect, some exceptions. The requirement to provide access to facilities only applies to those that the employer directly provides, so (for example) an employer probably isn’t required to give agency workers access to discounted gym membership as it wouldn’t come within the definition of pay.

If an agency worker is dismissed for asserting their rights under the Regs that will count as automatically unfair dismissal without the need for the agency worker to have completed 12 months continuous service. The time limit for a complaint to an ET is the usual three months from the date of detriment or breach of the Regs.

An agency worker also has the right not to be subject to a detriment for asserting their rights (ie short of dismissal) and an ET has the power to award compensation for injury to feelings if they are subjected to a detriment.  The claim can be brought against either the agency or the end-user depending on which party is liable for the breach/detriment.

What is to stop an employer terminating a worker in the eleventh week of the assignment and then rehiring? A break of less than six weeks between assignments won’t break continuity. If a complaint is made to an ET, and the ET considers that the pattern of work assignments has been organised so as to avoid the Regs applying, the ET can make an award up to £5,000.

There will, no doubt, be many cases involving the issue of whether a person is an agency worker within the meaning of the Regs. as well as cases on the issue of avoidance measures.  Whether they will casue the mass loss of jobs that business has predicted I don’t know, but anything that tries to even out inequality in the workplace must be a good thing.

[The above does not constitute legal advice to you: it is only my interpretation of the Regs]

Related posts:

1. Why Agency Workers Should Expect a P45 for Christmas

Agency Workers – the New Regulations originally appeared on Jobsworth by Michael Scutt on 06/10/2011.

It’s here again, the second of the two days in the year when the government introduces new legislation and regulation and increases rates and allowances. Instead we could have been in Munich having some real fun.

Saturday saw the introduction of the long-awaited (and feared) Agency Workers Regulations.  Opinion on them varies between them being a fundamental step in ensuring fairness in the workplace to one of the greatest threats to the UK’s reputation as being a friendly place for businesses to do, well, business.  More on this in a later blog post, but here is the BBC’s report on it.

 In other news, the government has finally published some details of how it intends to reform employment law procedure.  The political football that is the minimum qualification period for unfair dismissal has just been given a big punt upfield back to two years.  Actually a yo-yo might be a better analogy because we’ve had various qualification periods over the years from 6 months up to two years, then back down again, with some little twists and turns along the way.  The aim is to make life easier for employers and reduce the number of unfair dismissal claims.  The government claims it will save business £6 million per year and will mean 2,000 fewer ET claims per year. As I’ve said before this will not achieve that aim: disgruntled employees will simply look for discrimination and whistleblowing claims to bring instead, neither of which have minimum qualification periods.  And it is discrimination claims that tend to worry employers (and cost them more) than unfair dismissal.   I suspect this move will prove to be an own goal, one that even the less than fabulous back four at Arsenal, wouldn’t have conceded.

The other major announcement is that fees are to be introduced in the ET from April 2013 for issuing claims.  A fee of £250 will be required for issuing the proceedings (it is currently free) and a further £1,000 if the case goes all the way to a final hearing.  The fees will be refundable if the Claimant wins.  “Poor” claimants will be excluded from this requirement, but I haven’t seen a definition of how poor someone has to be to be exempt from the fees. For a strong analysis of why this is likely to be counter-productive for business, read Daniel Barnett’s blog post here.

These two changes have been brought about by the government’s perception that employment law is to skewed in favour of employees and places too big a burden on business.  However, I can’t help but feel that this is a convenient smokescreen for the government. The aim, as stated in the Department for Business Innovation and Skills document “One In One Out: Second Statement of New Regulation”  is to transfer the cost burden from tax payers to the users of the system” ie to make the ET system self-financing perhaps?  As has long been government policy with the Courts? Don’t forget that the Court and Tribunal Services are now merged, so it is very handy for the government to be able to claim that it is trying to protect business by introducing a reform that really is aimed at saving itself money.

Darren Newman in the Burt’s View blog here states that the Tribunal system isn’t geared up for receiving large sums of money (and having to refund them as well) and faces a major challenge in setting the system up. One of the reasons (the main one perhaps?) the previous government abolished payments into court in favour of Part 36 offers was to allow it to reduce the size of the Court Funds Office (which previously administered the payments in system).  Another own goal?

On the unfairness of having such a large issue and hearing fee Kerry Underwood (former Employment Judge) tweeted that

What is offensive about Osborne's proposals re court fees is that they discriminate against the poor, not those with weak cases #ukemplaw

03/10/2011 7:59 pm via webReplyRetweetFavorite

@kerry_underwood

Kerry Underwood

and

Emp Tribs can already order claimants to pay £500 deposit as condition of continuing, so issue fee hits only reasonable claims. #ukemplaw

03/10/2011 5:26 pm via webReplyRetweetFavorite

@kerry_underwood

Kerry Underwood

That is the key to removing the speculative claims from the system – proactive and robust case management by ET judges, not by introducing fees that may prevent people from bringing deserving claims.  I’m all for keeping out vexatious litigants out of the system, but this could prove to be  a step too far.

Darren Newman also draws attention to the government’s Red Tape Challenge, which begins thus;

 “Employment Related Law aims to protect employees from unfair practices and make staff and employers clear about their rights and responsibilities – and that remains a priority. But when regulation becomes over complicated and restrictive it can have the opposite effect and make it difficult for business to create new jobs.”

So, we can now look forward to a further review of employment laws – to include removing the “gold plating” from EU inspired legislation and a “rowing back” of individual rights? It will probably be another case of smoke and mirrors: the government has little scope for altering EU legislation.

Moving on to other news, the Minimum Wage has increased, as follows;

• the hourly rate applicable to workers over 21 years of age will be raised from £5.93 to £6.08;
• for workers aged 18-21, the hourly rate will be raised from £4.92 to £4.98;
• for workers aged under 18, the hourly rate will be raised from £3.64 to £3.68;
•  for apprentices, the hourly rate will be raised from £2.50 to £2.60

Retirement was also abolished on Saturday.  Or to put it another way, termination of employment on the basis of compulsory retirement at the default retirement age (65) has gone. It’s been on its last legs since last April when the abolition process commenced.  From now on employers can’t terminate someone’s employment because of their age unless such a step can be objectively justified. That, however, might not be as easy as it sounds. In future, if Doris from accounts is past her sell by date employers will have to assess her performance and will only be able to terminate on the basis of capability (or lack of) or risk facing a claim for age discrimination.

So, the uncertainty over employment law reform is set to continue as more reviews drag on.  It should provide plenty of material to blog about if nothing else.

Time for a beer in the meantime then?

No related posts.

Employment Law Octoberfest? originally appeared on Jobsworth by Michael Scutt on 05/10/2011.

Given the appalling events unfolding in London as I write this, it seems completely trivial to talk about extortion and implying criminal behaviour in the settlement of employment disputes, however on Sunday  The Telegraph reported about a massive costs award in favour of one Tim Watts following his defeat of a sex discrimination claim against him by one of his former employees.  Under an article entitled ‘Employment tribunals are legalised extortion’ he sets out his view that Employment legislation is too complex and offers far too many opportunities to employees who decide they want to have a go;

 What I’d like this to do is send a message to all the opportunists and chancers and vexatious spongers who bring these cases that it can backfire. The trouble is they still have everything else going for them. The entire system is rigged in their favour. I’ve won one, but most people will still cave in and pay out.”

So far so common place: most employers would agree with that view. The stats also tend to show that the very few discrimination claism that make it to a final ET hearing usually lose, costing the employer huge sums in legal costsb along the way.  What makes this stand out is the costs award made against the claimant  – £100,000 is said to be the record costs award and given that the ET only has power of its own accord to award £10,000 as a maximum sum for unreasonable behavior, unless it refers the matter to a county court for an assessment that is quite plausible. I do wonder if £100,000 is the right figure. Employment barrister @anyapalmer cast doubt on this though;

@michaelscutt I don't think £100k costs is the record. I got an order for costs in full and apparently it came to £257k http://t.co/KVtCHAg

09/08/2011 8:10 am via webReplyRetweetFavorite

@AnyaPalmer

Anya Palmer

But what to make of the comments by Lord Justice Mummery at the end of last month?    He gave the judgment dismissing the appeal of the Claimant in Gayle v Sandwell & Birmingham NHS Trust , a case originally arising over an alleged infringement of her right to time off work for trade union activities. He bemoaned the fact that the case had taken five years to reach its conclusion, been through three levels of court (ET, EAT and then Court of Appeal) and within the CA it had been reviewed three times (initial application for appeal, then oral application for permission and then the final hearing).  Although he doesn’t say so he virtually says that the whole case was a waste of time.  He points out how the ETs are under huge pressure because of the upturn in their workloads caused by the recession.  Understandably he doesn’t comment on the proposed reform of the ET system (what is happening with that , does anyone know?) and his final conclusion is ;

Lastly, the parties and their advisers themselves have duties to discharge personal and professional responsibilities in the preparation and presentation of the cases in the tribunals. They must keep a proper sense of proportion in the issues raised for decision, in the selection of legal points worth taking and of relevance in the quantity and quality of the evidence that they need to call. Contrary to the way that some observers see it and the way that some participants do it, justice in the tribunals (and in the courts) is not a war, or a battle, or a game. It is not a talent contest for spotting the winner and awarding a prize: it is (or certainly should be) a reasonable, sensible and civilised way of sorting out disputes that the parties have unfortunately been unable to sort out themselves. In my view, some (though by no means the majority) of the shortcomings identified by critics are not in the system itself, or in the tribunals, or in their practice and procedure, but in the attitudes and approaches of some litigants to the process of reasonable resolution of conflict.

This is a chicken and egg scenario. Claimants seek to enforce the rights given to them by Parliament (and from Europe); lawyers interpret and advise on those laws and assist Claimants to put their cases.  As a lawyer you can only deal with the client in front of you and advise on the law and procedure.  The client doesn’t have to take that advice and may decide they want to push on with the case even though you may advise them that they don’t have reasonable prospects of success. It’s too glib to blame unscrupulous lawyers for putting forward cases where no good claim really exists in the hope of “extorting” a settlement: if the client wants to have their day in court they are entitled to it if they can pay and if they can’t they can always represent themselves. As Mummery LJ also said;

as for those who complain about the time taken and the legal costs and other expenses and losses incurred, I think that they would want the hearings to be conducted in the interests of justice to both sides. I have seen very few constructive suggestions for practical improvements. If workers are given rights, there must be properly qualified, impartial and independent tribunals to adjudicate on them in accordance with a fair procedure. If workers are not given the necessary means for the just adjudication of their claims, procedures of a more rough and ready non-judicial kind may be used. The alternative procedures would probably not be impartial, independent or just, and are unlikely to do much for public order, social harmony or national prosperity

His comments about social harmony and “non-judicial remedies” seem remarkably prescient in the circumstances.

My thoughts go out to all those people whose businesses and homes have been attacked over the last three nights.

Related posts:

1. Costs in Employment Tribunals

Employment Tribunals: Legalised Extortion? originally appeared on Jobsworth by Michael Scutt on 09/08/2011.

Following the Supreme Court’s decision in R (on the application of G) v The Governors of School X probably  not if you’re a teacher in a state school. Doctors in the NHS may be able to.

One of the issues that arises in advising clients on the process is whether the employee should be allowed to bring a lawyer with them into the meeting.  There is no statutory legal right to be allowed to do so.  The Employment Relations Act 1999 s.10 only provides for a worker to have the right to be accompanied by a trade union official or a fellow worker.  It does not cover family members or friends (unless they are within the two allowed categories).

This can be a real problem for employees who are either very senior or in small companies where often there is no one appropriate from within the business to take with them and there is no union.  An employee can ask to take a lawyer with them but most employers will refuse. It is also a major issue where the employee is facing career-threatening allegations, such as teachers, doctors or even people regulated by the FSA.

Thanks to the much-maligned Human Rights Act 2000 (“HRA”), the situation is slightly more complicated when the employer is in the public sector.  This is because the HRA can be employed against public sector employers but not those in the private sector.  In particular Article 6 of the ECHR provides the right to “a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”, often shortened to the right to a fair trial. In Kulkarni v Milton Keynes Hospital NHS Trust [2009] EWCA Civ 789  it was held that a doctor should be entitled to legal representation at a disciplinary hearing if the effect of being dismissed would be to bar the individual from their career.

That view was upheld by the Court of Appeal in R (on the application of G) v The Governors of School X but subsequently rejected by the Supreme Court on a majority decision of 4 -1,who decided that there is no right under Article 6 ECHR to legal representation at a disciplinary meeting where a decision to dismiss could lead to the individual being barred from their profession if the barring decision is sufficiently independent of the dismissal.

In this case G., the employee, was a teaching assistant accused of an inappropriate relationship with a pupil. He was summoned to a disciplinary meeting and refused permission for his lawyer to accompany him.  On advice he refused to co-operate with the disciplinary meeting. The school dismissed him and he commenced proceedings for judicial review of the school’s decision to deny him legal representation at the disciplinary hearing. He argued that the decision to terminate his employment prevented him from teaching.  Because the Protection of Children Act was involved, the fact of his dismissal had to be passed on to the ISA – Independent Safeguarding Authority – for consideration as to whether he should be banned from working with children.  The ISA is a statutory, independent body.

This is where this case and Kulkarni differ. In Kulkarni the employer was the NHS, which is effectively the employer of the overwhelming majority of doctors in the country.  A decision to ban him from working in the NHS effectively meant that he could not work again. One decision automatically followed the other.  However, in this most recent case the ISA was independent of the school, the decision to bar him was taken entirely independently of the school. The Supreme Court held that that meant he did not need legal advice at the disciplinary because the two processes were independent of each other. The ISA were not bound to bar the teacher just because of his dismissal in those circumstances. Their caseworkers had guidelines to follow when deciding whether to bar or not.

This is a harsh decision.  G was faced with serious allegations, which could have led to criminal proceedings as well as the loss of his career.The majority view of the Supreme Court was that the school was only concerned with the issue of his employment and not his civil right to teach or work with children.  How can the two be divorced in a case based on facts such as these?    I suspect the underlying rationale is that the Supreme Court did not want to see disciplinary proceedings in schools turned into mini-employment tribunals and also sought to preserve ISA’s reputation, but that is a poor rationale for denying individuals proper legal representation in serious cases.  Lord Dyson’s lead judgment spent much time discussing the ISA’s procedures, which did not include the right for him to give oral evidence to it.  G, on legal advice, did not give his account to the disciplinary meeting, and was dismissed.  Despite this the school were satisfied that the allegations were made out and dismissed him.  It appears from the judgment that the ISA have not yet made the barring decision but, as Lord Kerr, dissenting from the majority, pointed out it was inconceivable that the ISA would not be heavily influenced by the school’s decision to dismiss;

“Although the actual determination takes place at the point when ISA decides whether to include the respondent on the list, the anterior stage of disciplinary proceedings cannot be left out of account in deciding whether the overall process is fair.“

Exactly so. The number of teachers facing career threatening allegations is, presumably (and hopefully) fairly small, so the floodgates would hardly have opened, if at all, had the Supreme Court upheld the Court of Appeal’s decision.  However, it looks like we’re stuck with this decision for some time.

Related posts:

1. The new statutory disciplinary and dismissal procedures
2. Can a Partner be an Employee?
3. Can My Employees Secretly Tape a Meeting With Me?

Can an Employee take a Lawyer into a Disciplinary or Grievance Meeting? originally appeared on Jobsworth by Michael Scutt on 09/07/2011.

Employers: watch out. Trying to pay notice pay as an ex gratia payment could land you in trouble.

That is what happened in the case of Publicis Consultants Uk Ltd v Ms O’Farrell in a case that was heard before the Employment Appeal Tribunal last month.

The issue in dispute was the company’s description of a payment equivalent to three month’s gross salary as an “ex-gratia” payment. She was contractually entitled to three month’s notice monies but was dismissed for reason of redundancy with only four days notice.  Although she was paid the ex-gratia monies, a statutory redundancy payment and her holiday monies she sued for, amongst other claims, breach of contract.  The employer tried to say that they had effectively paid the notice monies by way of the ex-gratia.

The EAT upheld the ET’s decision that the letter from the employer setting out the payments made no mention of a notice payment and thus the company was in breach of contract.

This is quite  a harsh result on the employer.  The company were probably trying to do the employee (and themselves) a favour by paying her the notice monies on an ex-gratia basis so that she could be paid without income tax or employees’ national insurance being deducted. It would make the redundancy package look more appealing when, in reality, they were just paying her for the notice period. There was a PILON clause in her contract of employment meaning that any Payment In Lieu Of Notice would have to be paid net of tax and NICs.  HMRC presumably would have been interested in that arrangement – many employers avoid this sort of manoeuvre precisely for this reason.

Because the employee also had other claims against the company, including for unfair dismissal, the dispute went all the way to a final hearing at the ET. The actual issue in question here could have been prevented had the parties entered into a legally binding compromise agreement which would have prevented the challenge or, more fundamentally, the communication from employer to employee should have been worded much more carefully.

Thanks to Daniel Barnett and his excellent case updating service for bringing this case to my attention.

Related posts:

1. Bonus – what bonus?
2. Will SRP be increased?
3. Redundancy – know your rights!

When is an Ex-Gratia Payment a Notice Payment? originally appeared on Jobsworth by Michael Scutt on 29/06/2011.

A few days ago I was telephoned by a prospective new client: she has been working for her employers for just over eleven months and was expecting her boss to terminate her employment at any moment. She told me she had worked well, been very flexible when required, worked unsociable hours and taken a cut in her hours when the business fell on hard times.   In return her boss criticised her (unfairly I am told) for not having the right attitude and spending too much time on her social life.  Leaving aside the issue of who was telling the truth, what is her legal position if her employment is terminated before she has gained 12 months continuous employment experience? What rights has she got?

The regrettable answer is not many.

As the law currently stands (and has since 1999), an employee must (in most cases) have 12 months continuous employment to be able to bring a claim for unfair dismissal.  This can be shortened slightly by the length of the statutory notice period (one week), assuming the employer is unable to pay the notice period “in lieu” of working the notice, meaning that the employer has to dismiss before the 51^st week of employment. If it is possible to allege that the dismissal is “automatically unfair” (because of a discriminatory reason or certain other prescribed situations) then there is no period of qualification required.

However, if she is dismissed before then, her only entitlement will be to her notice period; either to work it if it is an “ordinary” dismissal or, for her notice pay if she is summarily dismissed and told to leave the premises there and then. In the latter case she would have a claim for breach of contract, aka “wrongful dismissal” (note: not to be confused with unfair dismissal which is something else entirely) the compensation for which would only be for her notice monies.

That is a claim she could bring at an Employment Tribunal, which has jurisdiction to hear breach of contract claims up to £25,000.

How much notice is she entitled to receive?  That will depend on what her contract of employment says.  Assuming there is no contract and the employer has not stated what the notice period is, then she will only be entitled to statutory notice, under the Employment Rights Act.  That means for an employee with over one month’s service but less than one year she is entitled to one week’s notice.  That increases to one month covering one to four years’ service (therefore two years equals four weeks, as does four weeks service) and then increases by one week per year of service up to 12 weeks.

In other words, at 11 months service she would be statutorily entitled to one week’s money in the absence of anything to the contrary. She would not be able to bring a claim at an ET to say that her employer had acted unfairly in dismissing her.

Until a few years ago it was thought that a claim could be brought against an employer who dismissed in these circumstances, in order to prevent the employee from gaining her employment rights.  The case of Raspin v United New Shops Ltd 1999 held that an employee dismissed without being given proper notice may be able to claim damages for the loss of unfair dismissal rights if they would have gained those rights had proper notice been given.  However, the case of Wise Group v Mitchell EAT 2005 decided this was not correct. Thus employees therefore remain vulnerable to being sacked at the eleventh hour (well month, but you know what I mean).

This is all particularly relevant now because the government has launched a consultation on employment law practice and procedure.  One of the most high profile proposals is for the 12 month period to be extended to 24 months.  I think this is misguided, wrong and likely to be counter-productive, for reasons I set out here in my last post. It will lead to more employees, many of them in vulnerable positions being exploited as this particular lady was and deny them proper legal redress.

Thinking aloud for a moment (and it might seem crazy to suggest it because it is well out of tune with the current prevailing anti-employee climate) perhaps we ought to consider reducing the qualification period for unfair dismissal to zero months? The qualification period has moved around a fair bit since unfair dismissal was created as a cause of action in 1971: then it only required six months’ continuous service until being increased to one year in 1980 (although two year service was then needed for small firms), two years in 1985 and then back to one year in 1999.  In other words, it’s not set in stone but is something of a political football to be kicked around by the whim of the government.

A reduction to zero months would bring it into line with anti-discrimination provisions and, bizarrely, although it would lead to an increase in unfair dismissal claims, might actually lead to a reduction in the number of weak discrimination claims that are brought by employees because they have no other cause of action.  It would be interesting to learn how many discrimination claims are brought by employees within their first twelve months of employment. Does anyone know of any statistics?

Madness?  Let me know what you think.

Related posts:

1. Unfair Dismissal Rights to be Restricted?
2. Unfair Dismissal to be Abolished?
3. Riots, Looting and Unfair Dismissal

Unfair Dismissal Without 12 Months Continuous Employment Experience? originally appeared on Jobsworth by Michael Scutt on 07/02/2011.