Jobsworth by Michael Scutt » ACAS

Do Employees Have it All Their Own Way?

Michael Scutt — Mon, 26 Apr 2010 14:12:37 +0000

How not to Resolve a Dispute or Why Employees should never try to wear traffic cones

(picture right) How Not to Resolve Disputes or Why Employees Should Never Wear Traffic Cones

I’ve had this question (or more usually) statement put to me a few times just recently, most recently in a comment on this blog and the second by a delegate at a talk I gave at the City Business Library last Friday. Both were employers that thought UK employment law gives employees too many rights and opportunities to sue employers already burdened with a vast number of rules and regulations. In one obvious sense they are correct: employees have a vast number of rights of action available to them, from asserting a statutory right, via anti-discrimination legislation, equal pay, unfair dismissal and unlawful deduction of wages, to whistleblowing. The concept of unfair dismissal only dates back to 1971 and employment law is very much a young upstart in English law compared to most other types of work. Also, the number of claims brought at Employment Tribunals has increased year on year (save for last year where there was a 20% decrease in the number of claims lodged at the ET – click here to go to the ET’s statistics report *)

Since 2004, when the government introduced statutory disciplinary and grievance procedures intended to promote dispute resolution between employers and employee internally, the number of claims being commenced at the ET has increased dramatically. However, is it right to say that employees have everything their own way and that employers no longer have the freedom to manage?

There is no “costs-shifting” jurisdiction as of right in the ET. In other words the winner doesn’t automatically get his legal costs paid by the loser. A Claimant also does not need to pay a fee to the ET to commence his claim; the form can be filled out online and submitted easily. No wonder employers feel the balance has shifted too far towards the employee. But look at it from the point of view of the employee. Although they may have the right to, for example, request flexible working, comparatively few do. Many also complain of work situations where they want to claim constructive dismissal, but few do because of the risk of resigning without a job to go to. Further, every employee is under a duty to mitigate their financial losses, so if they do make a claim and also obtain an alternative job they will cut down what they might recover from the Tribunal if they win. And that is another big issue and, as the statistics show, most don’t win at Tribunal.

The main and justifiable complaint by employers is that employees can issue a claim, lead the employer into expense of time and legal costs and force the employer to settle the claim before it goes too far, in order to avoid costs getting out of hand. The availability of no win no fee agreements means that employees can mount claims that perhaps they would not have been able to do in the days when they would be paying a traditional retainer fee. In some cases, as I’ve discussed in previous posts on serial litigants, some unscrupulous people can make money from making repeated ET applications in the hope that the defendant business will pay up early to avoid the publicity or ongoing legal costs. Whilst those type of claims may be a small minority, you have to weigh the cost of preventing those claims against the need for access to justice and allowing employees with a genuine complaint to be able to bring their claims.

* That 20% figure may be artificially exaggerated because of the effect of 10,000 airline cases brought under the Working Time Regulations. The report itself notes that the real decrease, ignoring these claims, may be a decrease of 4%. The ET statistics also state that only 13% of the claims submitted were successful at Tribunal (i.e. the Claimant won), 33% were withdrawn (presumably because the employee was advised that they did not have reasonable prospects of success) and 32% were conciliated by ACAS. In other words, employees may have many potential rights of action available to them, but less than half actually obtain any benefit from the claims (I say this on the assumption that all of those conciliated by ACAS led to some form of financial settlement for the Claimant: in most but not all cases this will be so).

Do Employees Have it All Their Own Way? originally appeared on Jobsworth by Michael Scutt on 26/04/2010.

Seven Ways for Employers to Avoid Stress at Work Claims

Michael Scutt — Tue, 19 Jan 2010 10:00:45 +0000

Yesterday Ian Barratt of Mind Strengths Ltd published his “Seven Top Stress Management Tips for Employees”. Today I am publishing my “top tips” for employers hoping to avoid claims for stress at work from being commenced against them.

First, some background. Stress at work is a complex and wide-ranging subject, touching on many aspects of employment and personal injury law. The claims will arise either under the law of personal injury (in negligence) or under the Protection from Harassment Act 1997 (PHA) or, alternatively for constructive dismissal and/or discrimination. All four could be raised in the same instance, although it is not possible for an employee to sue in negligence and unfair dismissal unless the circumstances leading to the injury are independent of the facts relating to the dismissal. Although many employers may feel “under siege” from all the rights that employees have, they should note that the law is not kindly disposed towards employees in this area: stress at work claims are difficult and expensive for employees to pursue successfully.

No employer can be immune from ever finding themselves facing a claim from an employee, but following the tips below ought to reduce the risk of a claim arising or, if one does, of being successful. There are many legal aspects to allegations of “stress at work” and care needs to be taken when an employee asserts that the employer has, in some way, caused him/her to become unwell. Most allegations will state either that the employer has overloaded the employee with work or not provided enough support/resource to do the job properly or that a line manager has bullied/harassed/victimised the employee.

It is also not uncommon for employees to claim that they are suffering from “stress” when they fall into dispute with their employers or disciplinary/performance management processes are commenced against them.

How to mitigate the risk of these claims arising?

1. Adopt best practice

The Health & Safety Executive publishes a great deal of information on the subject. In particular it has devised “Management Standards” which “define the characteristics, or culture, of an organisation where the risks from work related stress are being effectively managed and controlled. … The Management Standards cover six key areas of work design that, if not properly managed, are associated with poor health and well-being, lower productivity and increased sickness absence.” There are six management standards covering demands; control, support, relationships, role and change. The TUC and ACAS also publish useful materials on stress at work.

2. Be aware.

Carry out risk assessments of the roles your employees are expected to undertake and the workplace in which the role is to be carried out. This is not only integral to the HSE’s Management Standards but is a statutory requirement under the Health and Safety at Work Act 1974 (HSWA) and the Management of Health and Safety At Work Regulations 1999 (MHSW). The HSWA applies to any employer with more than five employees and require “a written statement of his general policy with regard to health and safety at work of his employees”. The MHSW requires a risk assessment “for the purpose of identifying the measures he needs to take to comply with” his particular statutory duties. Breach of this requirement can make an employer liable at civil law. However, a greater incentive for compliance is that an employer who does carry out a proper risk assessment is going to be better positioned to defeat a claim for stress at work than one who does not because the risk assessment process should uncover any obvious factors potentially giving rise to stress. An employer will only be liable in negligence if his breach of duty of care to the employee was reasonably foreseeable.

Take action before it is too late

3. Have a stress policy and adhere to it

This might include providing employees with access to a counselling service or a telephone helpline. The courts look favourably on employers who do so, but the provision of such facilities won’t be enough on its own to rebut liability.

4. Act fairly and consistently

Stress claims can arise from incidents of bullying/harassment and victimisation. Put in place policies promoting equality in the workplace – and enforce them. Claims for discrimination can arise, apart from any other considerations over stress and there is no maximum cap for compensation unlike with unfair dismissal claims. We see many claims where the situation has been caused by fellow employees displaying completely inappropriate behaviour in the workplace, or line managers being “over-zealous” in trying to fulfil their roles. Ensure that line managers manage fairly and in a “human” fashion. An employee suffering bullying at work from other colleagues or line managers may be able to bring a claim under the PHA for “distress” caused.

5. Contracts of employment (1)

Ensure that you have the contractual right (either in the contract of employment or the contractually binding section of the Employee Handbook) to require the employee to attend a doctor for the purpose of a medical report. This can be a useful tool if the employee is off sick for any length of time because it means you can get a medical report from an independent expert rather than relying solely on the letters from the employee’s GP, who will often be very keen to be (too) supportive of the employee.

6. Contracts of employment (2)

They should be drafted so that any entitlement to full sick pay (as opposed to statutory sick pay (SSP)) is in the discretion of the employer or, preferably, full sick pay will not be paid if an employee goes on sick leave immediately after having been asked to attend a disciplinary or performance management meeting. Employees tend to become well again once they are not being paid. SSP is payable in most cases (click here for main terms) for 28 weeks at the rate of £79.15. Click here for more details on SSP. Amending employees’ contracts of employment can be a complicated process, fraught with challenges of its own. Please seek legal advice before deciding to do so.

7. Act decisively

If a stress at work problem looks like it might be rearing its ugly head, don’t ignore it. Take legal advice as soon as possible.

Related posts: Coming Soon … Miserable Monday

If you are an employer or employee and need advice on your situation please contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk.

None of the above material (or anything published anywhere on this blog by me or anyone else) constitutes legal advice to you. You should not rely on it and if you need legal advice about your situation you should take specific legal advice on your own situation. I am always happy to provide legal advice via Dale Langley & Co.

Seven Ways for Employers to Avoid Stress at Work Claims originally appeared on Jobsworth by Michael Scutt on 19/01/2010.