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.

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.

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.

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.

As a general rule of thumb employees would usually be well advised not to try this course of action, even as banter.  One employee, Mrs Doman, who had been a customer service adviser with the Royal Mail for nine years told her supervisor to “Fxxx Off” and was sacked for her pains.

The brief summary I have read (thanks to XpertHR for it) states that she was on a difficult telephone call to a customer when her acting line manager kept interrupting her, leading to the Claimant breaking down in tears (during the call), there then followed a “frank exchange of views” (that must be one of my favourite euphemisms of all time) and led to Mrs Doman uttering the fateful invitation. An investigation followed, Mrs Doman didn’t show contrition or apologise and was dismissed for misconduct. Bad language apparently wasn’t tolerated in this particular workplace.

The ET dismissed her claim for unfair dismissal on the basis that the employer’s decision was within the “range of reasonable responses test”.

So what you might say? That sort of language shouldn’t be tolerated in the workplace and serves her right.   This case doesn’t change the law at all. Much also depends on the nature of the workplace.  This sort of language might be tolerated on a building site but not in an office It does seem a bit harsh though.  Mrs Doman had nine years service and an unblemished record.  It looks like she was under pressure during the call and was reduced to tears during it, because of the interruptions apparently.  There was obviously a bust up at the end and I can’t help but feel from the summary that Mrs Doman was as much sinned against as sinning, but that wasn’t the view the ET took.    Her subsequent lack of contrition undoubtedly didn’t help and the Tribunal wasn’t interested in her claim that she had been under stress because she hadn’t told anyone at work that she was stressed.

According to the summary Royal Mail succeeded by “a very slim margin” that the dismissal was within the range of reasonable responses.  The alternative approach would have been to find the dismissal unfair but to reduce by 90% the compensation paid to the employee for bringing the episode upon herself.

The alternative route would have been preferable but even that seems harsh in a modern environment where the “F…” word is bandied about on the streets, in schools (God help us) and, yes, in the workplace, with abandon.  Given all the circumstances of this case, with the contributory factors on both sides, I think the ET took a rather old-fashioned view.  It’s only a decision of the ET so it doesn’t create a precedent but short-tempered or plain speaking employees should take note.

 What do you think?  Please complete the poll below,

[polldaddy poll=5502310]

No related posts.

Can You Tell Your Boss to Fxxx Off and Get Away With It? originally appeared on Jobsworth by Michael Scutt on 14/09/2011.

Now that the riots have passed away, thanks in no small part to the rain and a lot of police, the inquests can start. And the legal proceedings.  Police cells in London are said to be full to brimming with rioters and Magistrates Courts sitting all night and all weekend to get through the numbers being prosecuted. The airwaves and news media are thick with demands for retribution against the participants, for benefits to be cut and for evictions from social housing. Last week the Evening Standard carried a front page alleging that a teaching assistant had been arrested for participating in the riots. More such stories will surely follow and whilst it would be wrong to speculate on what might happen to any one particular person, are the Employment Tribunals going to get very busy over the next few months dealing with dismissed employees, leaving aside the issue that many rioters may have been unemployed or, scarily, beneath working age.

Would an employer be justified in sacking someone for rioting or looting even though it was committed outside work and there was nothing to link that person to the business? Whilst the cries are being made for “justice” (of the distinctly rough and ready variety) it would be sensible for employers not to wade in with the P45s too soon.

Consider the case in 2000, of a post clerk caught on camera in a serious brawl after an Arsenal match.  He was subsequently identified in the newspapers as working for Consignia (remember that name?)  and was dismissed.  Crucially the reason for his dismissal was not for having taken part in the brawl but for having brought his employers into disrepute (through the ensuing publicity). However, it appears that he subsequently succeeded with a claim for unfair dismissal and reached a substantial settlement, helped it seems by the threat of London postmen going out on strike in support of him  Clearly an employer needs to move very carefully before dismissing in these circumstances.

Some employment contracts, especially at more senior levels or in high profile jobs, will provide that the employee will not do anything to bring the employer into disrepute, although it’s probably unlikely that many employees in well remunerated jobs were engaged in the riots.  So, in the absence of any contractual clauses how should employers approach this thorniest of difficulties?

Much will depend on the nature of the employee’s job and the type of offence for which they are convicted. Is the employer’s business likely to be impacted by the employee’s offence?  In 1994 in the case of Securicor Guarding Ltd v Rouse the Appellant company had acted unfairly in dismissing a security guard prosecuted (but not convicted?) some years previously of sexually abusing children.  Securicor were criticised for not asking their customer what they thought of having to deal with the employee.  That seems like a slightly mad decision to me as asking customers to comment on the issue would presumably only bring the issue to the fore.

In a case on similar facts – Royal Life Estates(South) Ltd t/a Fox & Sons v Campbell – in 1993 the dismissal of a branch manager in a firm of estate agents who faced allegations of gross indecency – was held to be fair because it did not want to suffer damaging publicity. The difference?  In the latter case it seems that the employee admitted his guilt, whereas in the first the allegations were vehemently denied and it was accepted that the estate agency’s reputation might be harmed

An employer might be at risk if they move too quickly before the truth of the allegations is established.  That normally could cause a problem if the criminal proceedings drag on for months, as normally they would.  However, with the criminal justice system seems to be in overdrive at the moment with people being taken before the Beak and sent down quicker than you can say “Take him down”.

In unfair dismissal cases there are two issues for the ET.  Firstly, what was the reason for dismissal and, secondly, was it reasonable for the employer to rely upon that reason in dismissing the employee?

In respect of the first issue, in misconduct cases it is for the employer to prove that the employee was dismissed for that reason.  There is a three stage test laid down by the case of British Home Stores v Burchell EAT 1980 ICR 303, which is this;

1. At the time the employee was dismissed, did the employer believe the employee had been guilty of misconduct?
2. Were there reasonable grounds for the belief?
3. Did the employer carry out as much investigation into the circumstances of the case as was reasonable in all the circumstances before dismissing the employee?

There is thus no need for the employee to be guilty of the misconduct alleged, it is instead a case of the employer carrying out a proper investigation and being able to justify why the decision to dismiss was taken. But as I mentioned above, if the facts aren’t clear and an employee is dismissed without the employer understanding the allegation and the impact that might have on their business, a claim for unfair dismissal or discrimination might result.  What is important are the facts as the employer understood them at the time of dismissal – so if later information becomes available that would help (or hinder) the employer’s case it is of no relevance to the issue of fairness. The test at (2) is an objective one.

In many of these cases, where the “misconduct” actually occurred away from the business and out of business hours, the employer might rely on “some other substantial reason” as the reason for dismissing the employee. This is a “catch all” category and allows an employer to dismiss an employee

Was it reasonable for the employer to dismiss?  That question is governed by the “range of reasonable responses test” and if the employer reasonably thought that the alleged offence justified dismissal that will probably be sufficient.  Much will depend on what the employee stands accused of, when the offences occurred, what harm it might do to the employer in being associated with the employee.

What of an employee sentenced to a term of imprisonment?  In that situation the contract of employment may be said to have been “frustrated” and thus brought to an end. That wouldn’t count as a dismissal nor a breach of contract and thus neither a wrongful nor unfair dismissal claim can arise.  However, the length of the prison sentence will need to be lengthy in comparison with the individual’s length of service.

 What is clear is that knee-jerk responses should be avoided.  There must be a thorough investigation so that the employer knows what the employee is accused of.  For instance, what if the employee was genuinely caught up in the rioting, say foolishly, watching but not participating?  They might be said to be stupid, but criminally liable? Would dismissal be a reasonable response? In a few months time my guess is that  not only will we be seeing the criminal courts clogged up with people appealing the harshness of their sentences but also Employment Tribunals bursting with unfair dismissal claims by people dismissed from their jobs because of their alleged involvement in these riots.

Related posts:

1. Unfair Dismissal: What if the Employer Can’t Pay?
2. Unfair Dismissal to be Abolished?
3. Unfair Dismissal Without 12 Months Continuous Employment Experience?

Riots, Looting and Unfair Dismissal originally appeared on Jobsworth by Michael Scutt on 20/08/2011.

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Cartoon Time originally appeared on Jobsworth by Michael Scutt on 19/08/2011.