Usefully Employed

The National Staff Dismissal Register will be a searchable database of employees who have been dismissed for ‘dishonesty’ or have resigned while dismissal proceedings are ongoing - see the article on Personnel Today. I’m amazed this hasn’t generated more headlines. It’s been developed in consultation with the Information Commissioner’s Office, so one assumes the data protection angle will be looked after, and I’d guess there will be a dispute resolution service to remove disputed details. I’ve not seen complete details of the scheme, but some immediate issues that spring to mind:

• If use of the database is widespread, finding another job after dismissal will be near impossible; this could seriously affect an unfairly dismissed employee’s chance of mitigating his loss pending the unfair dismissal finding (at which one assumes the dismissal will be removed from the system). This will mean higher compensatory awards, and potentially arguments over damage to reputation and so on.
• What if I’m being investigated for an allegation that constitutes dishonesty, but I resign for other reasons? What if I’ve been constructively dismissed? What if the allegations of dishonesty were victimisation following a discrimination claim? The disputes reaching the database operators could well trespass into findings best left for a tribunal - and if the procedures don’t exist then serious injustice could result.
• Will there be any compulsion for those employers signed up to the system to report their employees? A lot of investigations and disciplinary procedures end with a resignation, a cessation of the procedure, and the employer simply refusing to respond to subsequent reference requests. An employee in that situation still has reasonable chances of employment, but if his former employer is obliged to put him on the database then his chances are shot.

I can well understand why there are concerns. A TUC representative stated to the BBC:

“The TUC is seriously concerned that this register can only lead to people being shut out from the job market by an employer who falsely accuses them of misconduct or sacks them because they bear them a grudge. Individuals would be treated as criminals, even though the police have never been contacted.

“The Criminal Records Bureau was set up to assist employers to make safe appointments when recruiting staff to work with vulnerable groups. The CRB already provides appropriate and properly regulated protection for employers. Under the new register, an employee may not be aware they have been blacklisted or have any right to appeal.”

…and at the moment those very genuine concerns aren’t answered.

The Law21 blog entry on marketing has again inspired me to rant on the future of the legal profession.

‘Your solicitor, qualified to answer’ is a major national advertising and PR campaign to promote solicitors to the public.

Our aim is to encourage consumers to use solicitors by promoting their services and highlighting the unique selling points solicitors have to offer. Running from April to June, the campaign will focus on the reasons why solicitors are the only sensible choice for consumers. They are:

• more expert and reliable than other providers of legal or quasi-legal services
• properly regulated
• excellent value for money 

 … or so say the Law Society in their recent marketing campaign to raise the ‘brand’ of solicitors. I’d edit the list as follows:

• more expert and reliable than [many] other providers of legal or quasi-legal services [but are increasingly inferior to some]
• properly regulated [and insured for when they fail to be more expert and reliable than the other side]
• excellent value for money.

I don’t want to be confrontational; there are solicitors firms out there that do all the Law Society says, but they are the minority. Use a solicitor ten times over rather than some internet cowboys, but the badge of ’solicitor’ itself is no guarantee of quality. Solicitors should be the cornerstone of reliability and expertise, but firms must make some real changes. Taking the Law Society’s list:

• Expertise: I started off a solicitor in a high street firm which did a good amount of employment law for the firm’s size. I moved from there to a consultancy / insurance company you’ve never heard of, which in respect of its consultancy at least is completely unregulated. The quality at the latter was ten times better - the expertise and dedication to employment law was enormous. I’m not saying the law firm wasn’t competent - it was that and more - but it didn’t have the same excellence. I attribute the excellence at the consultancy to the commercial pressure of competition. If you’re Bloggs & Co Solicitors then you immediately have a badge stuck to your chest, and the public will reckon you the best man for the job because of it. If you’re Bloggs Limited and you want to succeed, you’d better make a name for yourself, get out there and network, and deliver on your commitments.
• Regulation: Boy do you need that. I wouldn’t for a second disagree. When you provide legal services you play with people’s lives, and they need a fundamental reassurance that there is a legal framework for them to seek redress when you cock it up. What’s wrong with the system is the regulator itself - the SRA. Its huge, monolithic, inefficient, and worst of all its one-size-fits-all style of regulation prevents firms from competing effectively. You also need compulsory insurance for professional negligence, and most other professionals would do a double take at the premiums solicitors have to pay.
• Excellent value for money: Where solicitors lack at the moment is in charging innovation, as the Law21 blog notes every couple of weeks or so, and as I’ve rambled about previously.

This is all terribly sad, as it commercialises the role of solicitor which in previous days wasn’t simply a job, but a vocation. But solicitors haven’t changed for the worst, they’ve simply been outpaced by modern society. They must adapt and they must survive. The Law Society campaign is completely backwards - it tries to educate people that solicitors are the answer to their problems when this message is becoming less and less true every day. Their time and resources would be much better spent in engaging with their own profession on how to rescue the brand of ’solicitor’ and invest it with some meaning in the modern age.

It’s a cynical view that all you do when your company goes bust is put it into administration and buy it back, but would seem to be amply demonstrated by this case.

Company goes into administration, administrator has no money for wages so sacks all the staff, then duly sells business back to original owner. Is dismissal for a reason connected with the transfer, thus giving TUPE protection? No. The dismissal’s because the administrator didn’t have any money. The allegation that this is exactly what was planned by the owner all along isn’t relevant once you establish the motivation and mind of the actual dismissing officer.

This is a real kick in the balls for employees in this situation. Although I think the decision’s probably correct, the morals of it are amply spelled out by the court:

As counsel have identified, the critical question is whose decision was it? Once the answer is that it was the administrator’s decision, then nothing done by Craig Smith before that decision was taken nor after it could have any bearing on the reasons why Mr Rutherford acted as he did. The facts may give rise to the inevitable conclusion that Craig Smith cynically manipulated the insolvency of Friction, saw the opportunity of the August holidays as the best time to place the company in administration and did so not simply with a hope but with every expectation that by reason of Realty’s close association with Dynamex, Dynamex itself would soon fall into his palm. That is what happened. It is not an attractive story. It brings no credit to Craig Smith. But Craig Smith did not decide to dismiss the employees even though he knew that would happen and wanted it to happen. Mr Rutherford dismissed them. He did so for economic reasons.

Having decided as it seems to be to me inevitable that the reasons have to be discerned from the actions of the administrator whose actions were unsullied by Smith’s scheming, then there is only one conclusion for any tribunal to reach: the reason for dismissal was an economic one. As Mr Ralls recognised, if the focus is on Mr Rutherford’s state of mind, then he is “a shot fox”. Unsporting as shooting a fox may be and as lacking in fair play as Craig Smith’s machinations were, I am compelled to allow the appeal and restore the decision of the Shrewsbury Employment Tribunal.

This is not an uncommon situation, and there may well be some argument for legislation providing for extra accountability by those who purchase a business they owned until a few weeks before. Will this happen though? No.

Charon QC, quoting The Prisoners Voice, quoting the Telegraph, reports on a case where a chef was prosecuted for hitting his brother over the head with a shovel following a row on whether or not Shepherd’s Pie properly comes with a layer of tomatoes on top. Of course it shouldn’t, but unfortunately sometimes does.

This reminded me that during my admittedly-high-volume employment law insured advice days, we had an extraordinary number of hotels and restaurants ring to say that their chefs were either mentally ill, or had been convicted of a violent offence, or often both. What is it about being a chef that triggers these mental problems? Has any research been done? Is it the job, or is it the predisposition of those it attracts?

I’d like some answers.

It’s happened to me metaphorically but never literally: being grabbed by the balls can give you a good constructive dismissal claim, as this funny case shows.

The report is so short it also acts as a good swot-sheet for constructive dismissal authorities.

EDIT: Actually, I’ve just remembered an incident where this did happen to me at work.

My earlier assurances that my blogging wouldn’t be interrupted by work have been shown to be completely hollow - over two weeks have passed since my last post.

And it’s not even as if there’s been nothing to report. Favourite case recently must be Kuzel v Roche Products Ltd which talks of the burden of proof in Unfair Dismissal cases. Generally in law the person advancing a case, eg you saying that your neighbour cut down your hedge, the state saying you murdered him in retaliation, has the burden of proving the allegation. Not so in unfair dismissal. S.98(1) ERA 1996 moves the burden on to the employer. So if I say “you sacked me for an absolutely bloody stupid reason” then my employer doesn’t have to disprove my version of events to oppose the claim, they have to come up with their own valid reason for my dismissal and prove that. The reasons I advanced don’t really come into it.

In this case however the employee had advanced whistleblowing (protected disclosure) as the reason for her dismissal. It’s obvious why she would make sure she did this if she thought she might have a shout - whistleblowing claims aren’t subject to the financial limits of normal unfair dismissal and include an award for injury to feelings. The employer ran some taking-the-piss SOSR defence about the relationship having broken down. The tribunal stuck two fingers up at everyone by finding that dismissal was for a third reason, against the pleadings of both parties. The consequence for the simple unfair dismissal claim is obvious - it succeeds as the potentially fair reason advanced by the employer was not found to be proved. The odd consequence is for the whistleblowing claim - where does the burden of proof lie? Traditionally it should be at the employee’s door, it’s her case and her allegations. The statute is largely silent on the issue, the reversal of the burden of proof only seeming to explicitly apply to the reason actually advanced by the employer to be the reason for the dismissal. Well for once we’ve some useful guidance, produced by the EAT and approved by the Court of Appeal:

1. Has the employee shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?
2. If so, has the employer proved his reason for dismissal? Failure to do so will render the dismissal unfair, and then coupled with a primia facie case from the employer will entitle the tribuanl to infer that the employee’s stated reasons are correct.
3. Has the employer disproved the reasons advanced by the employee? Even if the employer has failed to prove it’s own reason for the dismissal it may still have disproved that of the employee.
4. If not, dismissal is for the reasons stated by the employee. It is not however, at any stagae, for the employee to prove her reason.

I’ve mucked around with the above to apply generally.

The Court of Appeal seem to have taken the line that this case is one for minority interest, stating that it shows how worked up lawyers can get about something like the burden of proof. I agree, but not with their observation that this sort of case will be rare. Protected disclosures are often presented in conjunction with a general claim for unfair dismissal, and its similarity to a discrimination claim may well mean that the facts coincide with the parties having fallen out generally. The unfair dismissal might well then often succeed without the whistleblowing. The same can be said about maternity-related dismissals.

I have now started pupillage. It’s early days, but it seems as though it was the right decision.

In deference to the quality blogs and other sites out there that talk about pupillage, and (I admit) because it makes me a little nervous, I shan’t be blogging about what it’s like. In tribute to the good old days of BabyBarista however, the barristers I’ve met so far I’d describe as WheelerDealer, AlFresco, RichCynic and SwearBox. Now that’s my last word on the subject.

The Law21 blog, and this post in particular, should be compulsory reading for any member of the British legal profession. The focus on new provision of legal services tends to concentrate on work for individuals - divorces, probate, and so on. In employment law circles however the change is already happening. First Assist, Peninsula, Croner Consulting, EEF and the rest are hardly household names but between them conduct a huge part of Respondents’ litigation in the tribunals.

Many employers simply want to pay an annual premium and be insured against any claims they receive. Any large employer, even if it is well behaved, will receive a claim one day,  and fewer and fewer of these are farmed out to traditional law firms and counsel. If you are a commercial company who has sold an insurance policy then it makes much more financial sense to hire staff yourselves to conduct litigation and advocacy than to farm it out. Why? Because you retain the profit margin. Without any SRA or Bar Council regulation you can also be ultra-competitive in your hourly rates which means you achieve a better loss ratio for the insurance company.

Counsel still have their place for complex cases, or for where you simply must have a bum sat on a tribunal seat somewhere far away at very short notice, but as the Law21 blog notes: traditional law firms must forge alliances with the larger providers if they are to retain the work.

Employment is ahead of the game as tribunals don’t require a special right of audience, and (insured) work can therefore be undertaken by companies without any form of regulation at all. Once Alternative Business Structures and “soft-touch” regulation comes then all manner of commercial legal areas will go the same way, and it’ll be sink or swim for law firms and lawyers. Being legally qualified will be no guarantee of a place in the new order.

This is an interesting viewpoint (by Brian Cox on the Guardian’s Comment is Free site) on discrimination and “affirmative action” - a name I don’t like, although the term “positive discrimination” is no better.

It highlights the issue of what exactly we are trying to achieve with our discrimination legislation. Those in the private sector can’t use race as a characteristic when recruiting, and few would disagree with this. In the public sector it goes further than this: with race, for example, there is a duty on public sector employers to take steps to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups.

But how do you measure the results? What, from a concrete view, are you trying to achieve? The logic often used is that you should simply look at employment figures. If all our public sector employees are white, then surely there’s an impediment to ethnic minorities becoming civil servants. The shortcomings of this simplistic analysis are shown by looking at some extremes. Let’s take Leicester - one of the UK’s most diverse cities. Of its 280,000 inhabitants over 100,000 are non-white. Leicester is on target to be a city where whites form an ethnic minority by 2015. Its police service on the other hand has a mere 5.8% ethnic minority officers. Even allowing for the fact the constabulary covers the county as well, which will presumably be less diverse, this is a huge difference. The question is therefore why there are so few ethnic minority officers. The answer must be, as Brian Cox says, that they just don’t want to do it. Our attitudes are culturally provided, and at the risk of judging the issue by stereotypes the number of ethnic minority entrants into law, accountancy, pharmacy and other professions will be at a much higher proportion.

 So what do you want to do? Ensure equal opportunities, or modify people’s aspirations - basically social modelling? Is the latter even moral, let alone practical?

It’s been a while - apologies. The reason for my absence was a holiday to Wrocław.

It is a beautiful city and I recommend it to you. The trip was also my first to Eastern Europe - Prague, Krakow and their ilk may be old hat to most people but I didn’t quite know what to expect. Poland is interesting because of its relationship with the UK. Although it’s a bit OT, I thought I’d set down a few of my thoughts.

Everyone will tell you that the UK entered the war as a response to Hitler invading Poland, yet how we acquitted ourselves afterwards is far less noble. During the war over six million Poles lost their lives. When we look at our own experience of WWII with misty eyes, consider the experience of anyone unfortunate enough to be sandwiched between Nazi Germany on one side, and Joe Stalin on the other. In Germany’s possession for over a century before Hitler came to power, Wrocław under the Nazis underwent ethnic cleansing of almost all its Jews and and many of its ethnic Poles. In 1945 its German commanders refused to yield to the Red Army, turning the city into an all-too-easily-beaten fortress using forced labour by citizens who were shot as deserters if they refused to help with fortifications, or tried to evacuate the city. The fighting almost all took place from house to house, with both sides setting fire to whole districts. It’s not known precisely how many people died during the 82-day siege; estimates range from 40,000 to 170,000. What is known is that after 1945 the city’s population was at under a third of its pre-war level.

The view of many historians is that the UK and the USA, keen to secure agreement and peace with the Russian Army, let Poland down. The country had made the fourth-largest troop contribution to the Allied war effort, yet after the war Stalin was allowed to keep the parts of Poland he had seized in 1939, with the size of the country being “made up” by additions from subjugated Germany. This resulted in some of the largest movements of people seen in human history. Stalin was also given free rein over the post-war installation of government, producing a repressive Soviet-style communist society that wouldn’t finally crumble until 1990. Although the West can say that opposition to Stalin may have been impossible, it nonetheless had a hand in something deeply immoral.

Now Poland and the UK are affecting each other all over again - over half a million Poles have come to work here since their accession to the EU in 2004. This has been economically beneficial for Britain (oh yes it has, naysayers) and certainly beneficial for the workers themselves - the average salary in Poland is around £5,000 per annum, compared to a UK minimum wage of around £11,000 for full time work. If you live in a city I’ll bet you don’t live more than ten minutes drive from a Polish delicatessen, and certainly where I live huge old-fashioned analogue satellite dishes have appeared on the front of houses, with ‘PolSat’ emblazoned across the centre.

The economic consequences to Poland’s own infrastructure have been far less rosy - if a Wrocławian wants an operation he’ll have to wait a long time; around a fifth of the city’s doctors move away to work in other European health services. All over the city, a “brain drain” is occurring, with young Poles finding the wonderful Gothic architecture and beautiful cobbled streets a poor choice compared to quadrupling their pay packet and seeing the world. Britain’s economy has outperformed most other Western countries due largely to its Eastern European workers, but once again we’ve taken a lot away from those left behind.

Poles are now changing the UK employment law scene too. Were it not for the Polish pickers, packers, pluckers and plumbers the pool of potential agency workers would never have been there to force the evolution of this area of law. As I’ve previously said, rights for agency workers are a real political hot potato, with unions and employers’ federations dead set against one another on the importance of the flexibility that our agency-working Europeans provide. Now that many newspapers have revealed the influx of Poles has either decreased or that they’re even leaving, it may be that the Poles depart having made a lasting impression on even my obscure sphere of operation - employment law. So now I urge you to go and spend some of your hard-earned cash seeing beautiful Wrocław, you won’t regret it, and you’ll be paying them something back.

Oh, and if you were wondering, it’s pronounced Vrotswav. Roll the r.