We see a lot of employees who are being made redundant.  One of the issues that comes up time and time again is why they were selected.  Unless the role is unique then, usually, a selection pool is necessary to decide how to select the unlucky people for redundancy.  The composition of that pool can cause problems, such as was the case in Capita Hartshead Ltd v Byard, an EAT case, where the selection pool comprised one individual.

Ms Byard was an actuary in a team of four.  Her workload reduced for various reasons and she was selected for redundancy and her employment terminated.  Capita argued that they could not assign other work to her because she was a “(pension) Scheme actuary” and each appointment thus had a personal element and the company ran the risk (it perceived) of upsetting clients if it moved their accounts to the Claimant. The ET didn’t accept this submission.  If they had the end result would probably have been very different.

The Claimant issued her claim at the ET for unfair dismissal and won.  The employer appealed (following the case of Taymech v Ryan [1994] EAT/663/94) on the basis that the ET was wrong to look at how the employer selected the pool and thus wrong to find that it was an unfair dismissal.

The EAT disagreed and upheld the decision.  In doing so it set out the following principles to be considered when the issue of composition of a selection pool arises;

1. Was the decision of the employer one which lay within the range of conduct of the reasonable employer? [cf: Williams v Compair Maxam Ltd [1982] IRLR 83 [18]]
2. The reasonable responses test is applicable to the selection of the pool from which redundancies are to be drawn
3. There is no legal requirement that the pool has to consist of employees doing the same or similar work.  It’s a matter primarily for the employer to determine. It would be difficult for the employee to challenge it where the employer has genuinely applied his mind to the problem
4. The ET is entitled to consider with care and scrutinise carefully the reasoning of the employer to determine if he has genuinely applied his mind to the issue of who should be in the selection pool
5. If the employer has genuinely applied his mind to that issue it will be “difficult but not impossible” for the employee to challenge it.

There’s something in this case for employers and employees alike, although on balance and despite the fact that the employee won in this case, this is a decision which will give more comfort to employers.  Yes, their decision on who should be in the selection pool can be scrutinised, but provided the employer does “genuinely apply” its mind to whom should be placed at risk and, crucially, documents its reasons for doing so, it will be a challenge for the employee to succeed.  The “reasonable responses” test is a broad one.

Employees can still challenge these decisions,  but it is probably only in cases where the employer hasn’t thought it through properly that they will succeed.

Related posts:

1. Redundancy Revisited
2. How Should Employers Select Employees for Redundancy?
3. Redundancy Selection: Now Harder for Employees to Challenge?

Redundancy – Have You Got The Right Pool? originally appeared on Jobsworth by Michael Scutt on 23/02/2012.

Just how far does the long arm of the Employment Tribunal stretch when considering unfair dismissal? Last week the Supreme Court gave its Judgment in the case of Ravat v Halliburton Manufacturing and Services Ltd and the answer may well now be that the reach of the ET has just got longer.  S.94(1) of the Employment Rights Act 1996 provides that an employee has the right not to be unfairly dismissed. This does not present problems where the employee is working in Britain. However, it becomes an issue if the employee is working overseas.  In what circumstances can an employee claim protection under British law not to be unfairly dismissed?

The leading case on the subject for several years has been Lawson v Serco and, in particular, Lord Hoffmann’s Judgment on the question

 “what connection between Great Britain and the employment relationship is required to make section 94(1) the appropriate choice of law in deciding whether and in what circumstances an employee can complain that his dismissal was unfair?”

Lord Hoffmann went on to describe three likely scenarios where a foreign worker would be able to claim that a British employment tribunal had jurisdiction to hear a claim for unfair dismissal.  They were;

1. An employee working a in a political or social enclave (such as an embassy)
2. A worker posted abroad by a GB company (such as a foreign correspondent)
3. A peripatetic worker based in the UK

Expatriate workers outside these categories were not eligible to claim and would have to rely on whatever local legal protection there was available.

In practice those categories have not always proved to be as easy to implement in practice.  An example of this was last year’s case of Duncombe & Ors v Secretary of State for Children, Schools and Families (No 2) a case which involved British teachers employed by the British government to work in an international (not British) enclave. The Supreme Court allowed their appeal, which meant they could bring a claim in the British Employment Tribunal. Giving Judgment in that case Lady Hale said

“It is therefore clear that the right will only exceptionally cover employees who are working or based abroad.  The principle appears to be that the employment must have much stronger connections both with Great Britain and with British employment law than with any other system of law. There is no hard and fast rule and it is mistake to try and torture the circumstances of one employment to make it fit one of the examples given, for they are merely examples of the application of the general principle.” (my emphasis)

In Ravat, Lord Hope said

“The question of fact is whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it would be appropriate for the employee to have a claim for unfair dismissal in Great Britain.”

 Thus watering down the test from being “exceptional” to “sufficiently strong”, meaning foreign based employees should have more scope to argue that they should be allowed to bring claims for unfair dismissal within the ET. This, of course, doesn’t make the position any clearer for litigants or their advisers and writing in the 11KBW blog, John Kavanagh QC (who acted for Halliburton) said

It is certainly true that the Ravat decision is employee-friendly – the majority of overseas worker cases will now most likely be caught by s.94 if a long enough list of factors can be produced – but it is open to question whether this is quite what Parliament had intended. Instead, the tribunals are left with a lengthy fact-finding exercise combined with a distinct lack of clarity as to what the relevant facts they should be finding are. From now on, when establishing the scope of s.94(1), anything, it seems, goes.

Is he being too pessimistic? Surely Tribunals will be wary of over-extending themselves, but it may take some more cases to clear up these increasingly muddy waters. In the meantime, what are the factors that might be looked at in determining jurisdiction as part of one of Kavanagh’s dreaded “lengthy fact-finding exercises”? Here are some of the suggestions made in Duncombe and a couple of my own;

• What does the contract of employment say about jurisdiction?  Does it say English law will apply or the parties will submit to the exclusive jurisdiction of the English courts?

• In what currency is the employee paid?

• Where does the employee pay tax?

• What contacts did they have with the local community?  Were they in an enclave or fully integrated into the local community

• How was line management exercised?  From the UK or locally?

• What dealings did they have with the UK base?

• Does local law provide a remedy?  If no then the risk of a conflict of laws must recede, making it easier for a Tribunal to seize itself of jurisdiction.

Until Parliament legislates to make the law clearer we are going to be left with the current uncertainty. For once though, we seem to have a pro-employee decision and that is to be welcomed.

Related posts:

1. Holidays and Long Term Sick Leave

The Long Arm of (Employment) Law Just Got Longer? originally appeared on Jobsworth by Michael Scutt on 14/02/2012.

As the wheels fall off time’s winged chariot and Old Father Time is evicted from his nursing home;

And as the Partygoer of Unquenchable Thirst  prepares to meet the Office Party of Bitter Experience, it’s that time of the year again: the annual review.

For me, there seems to have been only one story this year and that is the proposed reforms to employment law. Well, and the abolition of retirement and the introduction of the Agency Workers Regulations I suppose, but despite these developments the government spent all year initiating consultations and reviews and calls for evidence on how to “rebalance” the workplace, where the delicate balance of employee rights versus employer obligations seemed to have toppled over in favour of the worker and the economy was in danger of collapse as a result – or was that because of the Eurozone crisis and a double-dip recession?  No one seemed quite clear but something must be done and giving the workers a good flogging, metaphorically if not literally, always boosts morale.

And last month, after several more of speculation, leaks and gossip, it all started to take shape:    unfair dismissal rights will take a year longer to acquire, fees will be needed before you can issue proceedings or go to trial and HM Courts and Tribunal Service can reduce the size of their furniture bill by only requiring one Judge, rather than three to hear the remaining unfair dismissal cases. We might also end up with Protected Conversations, which will supposedly allow employers and employees to have full and frank chats about problems in their employment relationship and sort things out without the need for throwing of toys and rushing off in a sulk to an Employment Tribunal.  Finally, we’ll also have a shedload more consultations and calls for evidence.

As we end the year those perennial favourite, pay awards for top executives and bankers bonuses made an unwelcome return to the front pages.  Nick Clegg said in a rather unwise comment that he abhorred overpaid people getting paid too much. Risky given his record I’d have thought. Christmas party articles   - there have been the usual seasonal glut.  I managed to restrain myself this year, mainly to avoid falling foul of the Twitteratti, who took agin them. You know the type: the office party is still the workplace, don’t photocopy your bottom, fondle members of the opposite sex , or get drunk and then have a most definitely Unprotected Conversation with your boss/colleague/subordinate.

But aside from all that, did anything else actually happen in UK employment law? Somewhat worryingly a couple of my employment lawyer friends were made redundant (ok, not a representative sample I know), suggesting that the popular perception that employment lawyers are submerged with work and thus raking it in may be rather wide of the mark.  I was even forced to cancel my order for a new Aston Martin and I got rid of the personal jet some time ago.

Redundancy has been a constant issue this year.  Not only has the government put forward proposals to simplify the consultation requirements, but as an article  in December’s ELA Briefing put it, there have been a number of cases involving redundancy that definitely advantage employers.

Small businesses in particular are supposed to find making redundancies difficult and are concerned about getting the procedures wrong. The position has eased since the statutory dismissal and grievance procedures were repealed in 2009 and the current ACAS Code of Practice excludes redundancies from its scope.  Employers still have consultation obligations, but the penalty for getting it wrong is nowhere near as bad as it was since the automatic uplift was abolished.

Disgruntled employees often complain that a fair procedure wasn’t followed, that they were scored wrongly against the criteria used or the criteria was flawed in some way.  In Dabson v David Cover & Sons Ltd it was held that the marks awarded by an employer in a selection exercise should only be investigated “where there was an absence of good faith or obvious error”.  That is a high burden for an employee to overcome, even where there are problems with the selection process.

Many redundancy situations involve a reorganisation or restructuring of the business, so not only is it a question of selecting whom is to depart but who is to be redeployed into a new role.  Arguments often arise over whether the new role is really different or the person appointed is suitably qualified, especially when two colleagues are competing for one consolidated role.  These issues arose in Morgan v The Welsh Rugby Union  and it was held that the employer hadn’t acted unfairly, even though they seemed to make a complete mess of the whole process.

Some other stuff did happen, aside from redundancy.  In October, retirement was finally abolished, so if you are still lucky enough to have a job you’ll probably be in it until you die.  The default retirement age of 65 has been consigned to the long grass and now an employer cannot ask an employee to retire just on the basis of their age. Instead the individual can carry on working until they choose to pack it in.  Actually this isn’t quite the whole story: a business can have a retirement age but they will need to be able to justify it otherwise they might get sued for age discrimination unless, of course they can have a productive Protected Conversation  (they can’t, not if it circumvents discrimination legislation).

Also in October we had the introduction of the Agency Workers Regulations, which give those workers with contracts of employment with a job agency but who actually toil for an “end user” elsewhere a modicum of protection on pay and benefits after 12 weeks continuous service.  The government has already committed to reviewing the Regulations in a couple of years time, mainly to keep the business lobby quiet.

The list of potentially protectable beliefs under the Religion and Philosophy part of the Equality Act was added to, with belief in “Green issues” established last year by Grainger PLC v Nicholson, being joined by a belief in the ethos of the

Joe Hashman

BBC, and being fervently opposed to fox hunting (Hashman v Orchard Park Garden Centre).   However wearing a poppy isn’t a protected belief (Lisk v Shield Guardian)  and a former soldier who was not allowed to wear a poppy at work failed in his case because the “cause” (recognising the sacrifice of others) was too narrow to be recognised as a philosophical belief.  In August Bedford Employment Tribunal refused to accept that BDSM (Bondage, Domination and Sado-Masochism) was a protected belief.

If the thought of BDSM has you wincing in pain or shaking your head in disgust or disbelief, consider also the recent report in the Irish Independent that says more and more men of a certain age are undergoing “nip and tuck” jobs to compete with younger men, not just in the dating market but the workplace jungle as well.   Is this proof that age discrimination still lurks unchecked or welcome evidence that finally gender equality has hit the workplace and now men are just as vulnerable to being judged by their looks as women have always been? And would a session with Miss Whiplash hurt more than having the spare tyre round one’s middle surgically removed?

-

Back in February Nurse Laura Bowater made the headlines  after she was sacked for making a lewd comment at work. Thankfully she won her case, but not before getting to the Court of Appeal. I covered it in February and considered whether the result would have been different had she made her comment on Facebook (I think it would).

Saying something in the heat of the moment and then living to regret it is the usual theme when social media collides with employment law. This year has seen several cases of this sort, with freedom of speech colliding with reputational damage and no clear winner emerging. The underlying message for some time has been that employers need to have a social media policy to govern employees’ use of it.  This is particularly an issue where the comment is posted on (usually) Facebook; from an employee’s own PC or smartphone in their own time.  Most employers worry about reputational damage to them from such comments and seek to protect themselves accordingly.  However two cases showed the difficulties that can still arise.  In Crisp v Apple Retail an employee was held to have been fairly dismissed for making derogatory comments about Apple products.  Apple’s social media policy (which was subsequently leaked) prohibited any comment at all on either Apple or its products.  The comments were of an abusive (but not excessively so) nature and made comments critical of certain apple products.

However, in Stephens v Halfords PLC,   the Claimant was dismissed for posting critical comments on a company Facebook page following plans by Halfords to restructure, which would have meant working longer hours. Halfords has a social media policy which prohibited adverse comments and disclosure of confidential information. He  was dismissed for gross misconduct, but was finally held to have been unfairly dismissed. Halfords were criticised for undue reliance on the social media policy?  How do you reconcile these two cases? Is it the particular drafting ?  Or the fact that Stephens was apologetic and contrite whereas Crisp wasn’t? Or is it because Apple ‘s brand image is stronger than Halfords and thus deserves more protection in these instances?  I would hope it isn’t the latter because how then can you advise clients caught in this situation?  It isn’t for an Employment Tribunal to assess the strength of a brand: how could they? Does it mean that if you work for a small company that relatively few people will have heard of, you can get say more and get away with it? In none of the cases I’ve seen has actual reputational damage been proved to have occurred to the employer – either from customers or suppliers. These cases are all about the risk of damage occurring.  The law is uncertain and needs to be clarified.  Expect more cases next year.

One further issue on social media usage involving the workplace: Crisp v Apple confirmed that comments made on Facebook were public even if your privacy settings are set to maximum privacy.  The internet is not a private space because anyone linked to you can retweet or repost your comment. Also, never trust a “friend” on Facebook – they are usually the ones who bring the offending article to the attention of management.

The debate over s.147 EqA died down.  At the end of last year there was panic (mainly amongst Respondent lawyers) over the question of whether compromise agreements could validly dismiss a claim under the EqA because of some allegedly faulty drafting. Opinions from Learned Counsel were obtained arguing it both ways and the government talked about amending the legislation to remove the ambiguity.

The “Johnson Exclusion Zone” hoved into view following Judgment by the Supreme Court in the conjoined cases of Edwards and Botham.  For the best explanation I have read of what the cases mean turn to Laurie Anstis’  WorkLifeLaw blog post   on the subject. As Laurie says, any employment law decision of the Supreme Court deserves attention, but when it is a court comprised of seven of their Lordships (a full house in other words), it must be hot stuff.

Then the case of Michalak v Mid-Yorkshire NHS Trust hit the headlines last

Dr Eva Michalak

week, with possibly the largest ever discrimination payout to a former Consultant for unfair dismissal, sex and race discrimination.  The Daily Mail reported that the award would have funded an extra 210 nurses – maybe so, but wouldn’t it be better if employers stamped down on this type of behaviour in the first place instead of allowing a situation to develop where a woman’s career was ruined? It always seems ironic to me that NHS Trusts and Local Authorities etc usually have lengthy diversity and anti-bullying policies, yet when there is a horrendous case like this it more often than not seems to be against a public sector employer.

What’s to look forward to in the New Year apart from more pounds round the middle, fewer pounds in the pocket and a long haul through to half-decent weather in the Spring?  There should be some cases on employment status coming through.  In the case of Nadine Quashie, the ex-Stringfellows lapdancer, who has been given permission to appeal the decision that she was not an employee, that should be heard at some point in the New Year.    The decision of the Court of Appeal (again about employment status) in Tiffin v Lester Aldridge  has already (I understand) been heard and the Judgment should be handed down in the next couple of months as well. That may say some interesting things about the nature of partnerships and LLPs.

No doubt the first cases on age discrimination and retirement will start to trickle through and expect a glut of articles on managing employee absences during a certain sporting event next July.  I predict the emergence of a new workplace syndrome – “Olympic Fatigue”, affecting workers caught up on tubes, buses and roads by the vast increase in sports fans and bureaucrats travelling between venues and events, leading to unauthorised absences, stress and illness.

That’s it for now, my unscientific and highly personal round up of what caught my eye over the year.  I’d be delighted to have your comments or responses too, so please feel free to let me know how you saw 2011.  It only remains me for me to thank all of you who read the blog and leave kind comments.  It is very much appreciated, believe me.

I wish you all a very Happy Christmas and prosperous, non-litigious and lawyer-free New Year (unless you happen to be one or married to one, of course).

Related posts:

1. The Most Radical Employment Law Reforms for Decades? Or a Spectacular Own-Goal?

Review of 2011 – Radical Reforms, Unprotected Conversations & More originally appeared on Jobsworth by Michael Scutt on 21/12/2011.

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.

Personnel Today, citing the CBI Employment Trends report, reports that the Agency Workers Regulations (AWR) that came into force on 1^st October, have apparently led to employers reducing the number of temporary workers they employ.  The CBI calls for an “early review” of the AWR to ensure it is not making the UK uncompetitive and to remove any “gold-plating”.

The AWR provides that Agency Workers must be given equal pay and conditions once they have achieved 12 weeks service with the end user.  They weren’t retrospective, so it is only service since 1^st October 2011 that counts, meaning that any employers wanting to avoid the impact of the AWR will have to terminate temporary workers’ contracts by next 24^th December, being the 12^th week since the AWR came into force.  I was speaking to someone the other day in just this situation. Note the date.

What remedies does the temporary worker have, if their contract is terminated in these circumstances?  Not much is my view, assuming that there are no allegations of discrimination involved in the termination.  The problem with the AWR is that it doesn’t resolve the issue, highlighted in cases like Dacas v Brook Street and James v Greenwich Borough Council, of whom the worker should sue in the event that they feel they have been unfairly dismissed.

In these cases, the worker will usually have signed a contract for service that states he or she is self-employed.  The employment business (ie the recruitment agency) will have a separate contract with the business that needs the work doing and the worker will probably not even have a copy of that agreement.  The worker will, of course, be working for the end-user and the only link they will have with the employment business will be the time sheet they submit and the payslip they receive at the end of the month.  Consequently, if the end user decides they no longer need the worker they can end the contract when they want.  The worker is not employed by the end user (although in some limited cases it may be possible to argue that there was an implied contract of employment between the two but that is very fact sensitive) and is not employed by the employment business, meaning that they have no protection from unfair dismissal.

This is not usually an issue for genuinely temporary workers because they won’t acquire the required 12 months continuous employment experience in the first place.  But some “temporary” workers can spend years working for an end user and they are in a vulnerable position.

In the current climate of reducing red tape and reforming the UK’s supposedly onerous laws don’t expect that to change.

Related posts:

1. Agency Workers – the New Regulations
2. What do workers want?
3. Should Tube Workers be allowed to strike?

Why Agency Workers Should Expect a P45 for Christmas originally appeared on Jobsworth by Michael Scutt on 14/11/2011.

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.

Don't be Rude about Apple

A trickle of Employment Tribunal cases are coming through on dismissals associated with inappropriate or derogatory comments on Facebook.  The most recent, being Crisp v Apple Retail Ltd (unreported, as far as I can see) which held that an employee who posted (unspecified) derogatory comments about Apple and its products on a “private” Facebook page outside of his working hours was not unfairly dismissed for gross misconduct.  I would be interested to see the Judgment rather than just the brief summary in People Management Magazine (useful though that is) if anyone has it.

The key points were;

1. The employee made derogatory comments about the products and the company, which were in breach of Apple’s  social media policy which strictly prohibited commentary (critical or otherwise it seems) on the brand.
2.  The fact that the comments were made on a “private” Facebook page (whatever that is exactly, I’m not sure) was no defence because the “friends” who did have access were able to read, copy and disseminate the comments more widely.  The employee wasn’t able to rely on breach of his right to privacy under article 8 of the Human Rights Act 1998 – anything put on Facebook (and other social media platforms) isn’t private, by definition.  The case of Pay v Lancashire Probation Service established this point back in 2003.
3.  The employee could not succeed with his claim under Article 10 of the HRA  1998 that his right to freedom of expression was infringed because Apple were able to argue that his dismissal was a justified and proportionate response in order to protect its commercial reputation.  Again, this point was established in Pay.

It seems that the employee hoped that the fact he had set his “privacy” settings to limit the circulation of his status updates and posts would be enough to protect him.  This case is a reminder to employees that it won’t be: once a comment is posted it is out there and any “friend” (in this case a colleague) could pass the message on outside the restricted circle of friends. Indeed, this seems to be how all these Facebook cases arise, when a so-called “friend” actually grasses up the unfortunate employee.

The report in People Management Magazine says that this shows the importance of employers having a comprehensive social media policy.  I agree with that and have said as much many times before on this blog and elsewhere, but it doesn’t end there. Compare this decision with that given in Stephens v Halfords Retail PLC a few months ago, where comments made by an employee about the proposed restructuring were not sufficient to warrant dismissal for gross misconduct.  In that instance Halfords also had a social media policy that prevented adverse comments, yet they were seen to have acted unreasonably in dismissing Mr Stephens. How can the two be reconciled?  Does it depend on the strength of the brand?  If you’re an unloved company can your employers be more critical of you than if you’re a much respected (in Apple’s case, adored) business?

The crucial point is in establishing that the organisations reputation or commercial interests are damaged by the comments.  In Crisp, Apple was able to persuade the ET that they were.  Sadly we don’t know what Crisp wrote and that is a major problem in analysing the case further.  But if he had made reasoned criticisms of Apple, rather than merely abusive ones, it is a worrying decision.  Of course, this is only an ET case and doesn’t set a binding precedent, but the whole issue of whether a business’s commercial interests are damaged by comments made on social media is something that needs a great deal more clarity.

Related posts:

1. Employer was Justified in Sacking Employee for Comments on Facebook
2. Riots, Looting and Unfair Dismissal
3. Unfair Dismissal: What if the Employer Can’t Pay?

Derogatory “Private” Comments on Facebook Not Unfair Dismissal originally appeared on Jobsworth by Michael Scutt on 02/11/2011.

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 12:47 pm 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 8:23 am via Twitter for iPhoneReplyRetweetFavorite

@garyslapper

Gary Slapper

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

26/10/2011 2:27 pm via bitlyReplyRetweetFavorite

@TheLawyermag

The Lawyer

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

26/10/2011 1:47 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 10:49 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 10:52 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 10:43 am via webReplyRetweetFavorite

@MattHuddleson

Matt Huddleson

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

26/10/2011 10:34 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 9:16 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 9:03 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 8:27 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 7:47 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 11:34 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 11:25 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 7:47 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 12:17 pm 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 12:00 pm 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 11:39 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 11:40 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 11:36 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 11:35 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 2:55 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. Unfair Dismissal Without 12 Months Continuous Employment Experience?
3. Riots, Looting and Unfair Dismissal

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