Would Shirley Sherrod’s dismissal have been fair in the UK?

Posted on July 31, 2010 by Usefully Employed

In the US, agriculture department official Shirley Sherrod was forced to resign within 24 hours of a video being posted online relating a past incident from her career:

“I was struggling with the fact that so many black people had lost their farmland. And here I was faced with having to help a white person save their land. So, I didn’t give him the full force of what I could do. I did enough so that [he would] go back and report that I did try to help him. So I took him to a white lawyer … I figured if I take him to one of them, that his own kind would take care of him.”

Seemingly damning stuff.

As happens in the media-driven world, a storm developed almost immediately. The edited video appeared at 11.18am, and by mid-afternoon was all over the web. By the evening government officials had telephoned her demanding her resignation. She has alleged that this speed, and refusal to listen to her explanations, stemmed from the administration’s fear over the coverage they would likely receive that evening from right wing angles of the press. She later said that the under-secretary of state told her “you’re gonna have to [resign] because you’re on Glenn Beck tonight”. So she did.

But OOPS! The video of the speech had been carefully and deliberately edited. In the full speech, which came to light the next day, Ms Sherrod makes clear that she did ultimately provide all the help she could to the white farmer, and that she learned from the experience:

“But working with him made me see that it’s really about those who have versus those who don’t, you know, and they could be black, they could be white, they could be Hispanic.”

The white farmer concerned contacted CNN to say that she had, in fact, saved his farm.

So Sherrod was blameless. She had simply made a speech about her views of social justice being centred on race in the eighties, but moving to poverty based on her experiences of helping a poor farmer who was, for once, white. NAACP, the black civil rights movement to whom the speech had been addressed, said:

“she was sharing this account as part of a story of transformation and redemption. In the full video, Ms.Sherrod says she realized that the dislocation of farmers is about “haves and have nots.” “It’s not just about black people, it’s about poor people,” says Sherrod in the speech. “We have to get to the point where race exists but it doesn’t matter.”

The problem being of course, that she had already been dismissed.

Would this dismissal have been fair in the UK? The instinctive answer is that of course it would not; the law requires that:

  1. a dismissing employer believes the employee to be guilty of misconduct;
  2. had reasonable grounds to sustain that belief;
  3. and in the circumstances carried out a reasonable investigation.

Surely point 3 should surely fail here, given that Sherrod’s version was vindicated within 24 hours?

Might the government argue however that “in the circumstances” no greater investigation was possible? The administration was about to suffer a whole evening’s media, and next day’s newspapers, slamming it for both racism and a failure to take any action. If indeed she were guilty of the alleged racism, then it could avoid a great deal of criticism by having acted quickly and decisively. The proposition I would like to put forward, for debating purposes only you understand, is that these are legitimate reasons for an employer to curtail its investigation.

Take, for example, a company which suspects one of its employees of having stolen from a major customer. That customer is furious, and the company considers that only immediate dismissal will salvage the business relationship. The employee is dismissed, and as an explicit result of that the relationship is saved, and perhaps with it the company. This trespasses into third party / SOSR dismissal territory, but surely commercial or political pressure is a relevant factor for the third prong of the test? I’d be interested to know what people think. Is there perhaps an echo of Sharon Shoesmith here?

Happily, Sherrod has now received an apology and the offer of a new government post. Read all about her here and here.

Posted in Reinstatement & Re-engagement, Unfair Dismissal | Leave a comment

Bumper year for Acas

Posted on July 31, 2010 by Usefully Employed

The 2009/2010 report for Acas has been released. It reveals the service:

  • dealt with over 900 collective actions (usually industrial action or collective redundancies);
  • provided conciliation in over 85,000 employment tribunal actions – its highest ever number, and 13% more than in 2008/2009;
  • received over 1 million calls to its helpline;
  • dealt with over 10,000 “pre-claim” conciliations – this is where the Acas is asked by the parties to conciliate a claim before a tribunal action has been commenced.

In relation to the last figure, Acas claim that in over 70% of these cases tribunal proceedings were prevented. They quote a study which shows that getting to the stage where an ET3 is filed can already have cost a business £2,000, so the savings are substantial.

There seems to be no indication yet as to whether Acas will be facing significant cuts under the coalition’s spending plans, but it is well-placed to avoid these given it is an organisation that saves other people money. Acas chair Ed Sweeny is quoted as saying:

“We continue to deal first hand with the effects of recession and the immense strain it places on workplace relations. We are seeing signs of improvement with employers and unions taking a more pragmatic approach by working together, looking at ways to try and save jobs and avoid redundancy. This is in stark contrast to previous recessions.

Overall Acas provides excellent value – every pound of taxpayers’ money invested in it creates a return of up to £16.”

Indeed, there can be little doubt that this recession has been marked by that more “flexible” approach to reducing staff costs than the large-scale redundancy exercises of the past. Social and economic changes over the last two decades are the main contributors, but Acas has certainly had an important role to play in disseminating the alternatives to employers.

Read the Acas 2009/2010 annual report here:

http://www.acas.org.uk/index.aspx?articleid=1473

Posted in Acas, Employment Tribunal | Leave a comment

Costs against a fraudulent or lying Claimant

Posted on July 21, 2010 by Usefully Employed

In Nicolson Highlandwear Ltd v Nicolson (Practice and Procedure : Costs) [2010] UKEAT the tribunal found that the Claimant’s dismissal, whilst automatically unfair, was by reason of his “prima facie fraudulent intromissions with the Respondent Company’s business”, and his compensation was reduced by 100%.

Costs were not awarded, due to a finding by the ET that the Claimant “did not act unreasonably” in bringing the claim. Lady Smith finds this conclusion perverse. This goes further than the recent line of cases – see my post last year on two authorities deprecating tribunals’ refusals to award costs against lying Claimants.

This case is rather fact sensitive, but will be grist to the mill for many Respondent representatives trying to recoup the cost of meritless or vexatious claims. Another important point comes from Lady Smith’s rejection of the notion that it is legitimate to bring a claim for unfair dismissal simply to obtain a finding that it was so – there is a declaratory power in discrimination legislation, but not in Part X of the Employment Rights Act 1996. Many many clients have told their lawyers in conference that “it’s not about the money, it’s the principle”, but this EAT judgment will strengthen that lawyer’s warning that courts and tribunals do not usually look at it that way.

Posted in Costs, Employment Tribunal | Leave a comment

BA Cabin Crew to bring race discrimination claim

Posted on July 20, 2010 by Usefully Employed

The Guardian reports that:

A group of BA flight attendants is claiming that the removal of discounted travel from strikers discriminates indirectly against employees based in Scotland, Ireland and mainland Europe who use the scheme to commute to and from Heathrow airport. The group, called Crew Defence, is representing 75 employees who are lodging cases with an employment tribunal in Reading and plan to sue for compensation if their claim is upheld.

This is a bold claim, but it may be successful in crossing the first hurdle of showing that BA are applying a provision, criteria or practice which is applied equally but puts (for example) Scottish people at a disadvantage. It would then be for BA to show that the treatment is justified. Much will depend on the nature and context of the scheme and its removal. To use an example, if a factory in Carlisle provides a free employee bus from Kendal, can a wannabe employee in Dumfries make a complaint?

The employer is likely to agree that its practice of failing to provide a bus from Dumfries affects far more Scottish people than English, but would argue that it has a legitimate objective (attracting and retaining employees), and it is proportionate to achieve that objective by providing that one bus from Kendal. The employer might well claim, if it is small, that it can only afford the one bus and clearly that bus will either set off in England or set off in Scotland. That itself could constitute justification, but would be bolstered by a rational explanation of why Kendal was chosen in the first place.

Posted in Discrimination | 2 Comments

You always leave traces

Posted on July 20, 2010 by Usefully Employed

A cautionary tale not unlike my previous posts:

  • Purporting that a written warning was issued in 2007, when in fact you used a 2008 proforma but tippexed out the 2008, only to humiliatingly be asked to hold it up to the light in front of an employment tribunal;
  • Posting how much you hate your boss on Facebook, only for him to read it and dismiss you.

Here we’re concerned with the twitter feed @gillianmckeith – after a series of spats about McKeith’s qualifications, as derided by Ben Goldacre’s book Bad Science, the feed referred to his book as “lies”. Goldacre smelled a libel and tweeted back, only for the next tweet to read:

do you really believe this is real Twitter site for the GM?

As Goldacre puts it:

Yes, replied the geeks. The Twitter account @gillianmckeith is linked to gillianmckeith.info, explained some. Then that link was deleted. Ah, explained others: only half-deleted. If you look at the “source code” for the page, the link is there, just temporarily inactivated. And that Twitter account is still linked from gillianmckeith.tv, Gillian’s YouTube page.

Read Ben Goldacre’s article here.

So again, a gentle reminder to everyone out there: there is always someone out there with a stronger sense of smell than you, and they’ll sniff you out. Oh, and a second honourable mention for the Queen of forensic IT errors, the lady who purported that a letter was written in 1999, when it had clearly been typed in Office 2007.

Posted in Ramblings | 2 Comments

Simon Hughes hints at gay marriage change

Posted on July 20, 2010 by Usefully Employed

“We should be able to get there in this parliament.”

There is not yet a clear coalition line. David Cameron’s pre-election promise to look at the issue was criticised as a rather last-minute sop to a community many of which feel distrust towards the Conservative party. Pink News quotes gay Tory MP Nick Herbert as saying:

“It’s not something we’ve got immediate plans to change, but we recognise that there are views that say that the name is important.”

So changes may well be towards the end of this parliament, or indeed a promise for the next one.

Posted in Uncategorized | Leave a comment

Equality Act 2010: Ready Reckoner & Article Series

Posted on July 13, 2010 by Usefully Employed

Acas has issued a useful table showing where discrimination law stays the same, changes, or is new entirely following implementation of the Equality Act.

Usefully Employed has produced a web-based version of the table, which will be amended to include links explaining what the changes mean to employers, employees, and practitioners.

Visit the page here:

http://blog.usefullyemployed.co.uk/equality-act-2010/table-of-changes/

The Acas table, useful to print out as a ready reckoner, can be found here as a pdf:

http://www.acas.org.uk/CHttpHandler.ashx?id=2840&p=0

Posted in Uncategorized | Leave a comment

National Minimum Wage – new government approves increase and new apprentice rate

Posted on July 6, 2010 by Usefully Employed

The Conservative party was a vociferous opponent of the introduction of a National Minimum Wage. As long ago as 1991 Michael Howard, then Employment Secretary, rejected calls for its introduction with a claim that it would “cost two million jobs.” These claims were repeated in 1997 on the announcement of its introduction by the incoming Labour government.

In fact, despite neither party having a crystal ball as to what would really happen, it is now accepted that the NMW’s protection vastly outweighs its effect on unemployment figures. A 2006 study by the London School of Economics found that:

The consensus is that the minimum wage has not cost jobs, either in the aggregate economy or in the low wage industries and occupations.

..despite this outcome being contrary to the predictions of conventional economic theory. Read a summary of the study here:

http://cep.lse.ac.uk/pubs/download/CP217.pdf

David Cameron, and the coalition government, are cautious converts to the NMW, and have accepted the proposals of the Low Pay Commission that rates be increased as follows, effective 1st October 2010:

New National Minimum Wage rates

  • Adult rate: £5.93 (up from £5.80)
  • Development rate: £4.92 (up from £4.83)
  • 16-17 year old rate: £3.64 (up from £3.57)
  • Apprenticeship rate: £2.50

Note that the Adult rate now applies from age 21 instead of 22. The Development rate thus applies to 18, 19 and twenty-year-olds. The apprenticeship rate is a new development – a 37 hour week would now pay £92.50. There was already a de facto minimum of £95 per week, but the introduction of an hourly rate is designed to stop abuses of apprentices by having them work excessive hours.

Posted in National Minimum Wage | Leave a comment

Equality Act 2010 – there is an actual devil in the detail

Posted on July 6, 2010 by Usefully Employed

Section 60(9) of the Equality Act 2010:

“Work” means employment, contract work, a position as a partner, a position as a member of an LLP, a pupillage or tenancy, being taken as a devil, membership of a stable, an appointment to a personal or public office, or the provision of an employment service; and the references in subsection (1) to offering a person work are, in relation to contract work, to be read as references to allowing a person to do the work.

This is, apparently, the terminology used for the Scottish equivalent of pupil barristers. But you can bet there’ll be a fair bit of head scratching by lawyers and HR staff when reading this section. A stable, if you were wondering, is a Scottish chambers, like this one. Apologies for this article to Usefully Employed readers North of the border.

Posted in Discrimination, Lawyers, Rambling | Leave a comment

Contingency fees in employment – Law Society wades in…

Posted on June 16, 2010 by Usefully Employed

…with both a practice note for firms undertaking what are now called “Damages Based Agreements”, and a call to the (by now old) government to repeal the regulations governing their use.

By way of reminder, the charging of a contingency fee – where the amount charged by the representative is a percentage of the compensation recovered – had gained great popularity in the last few years. Costs are not normally payable by the losing party in the Employment Tribunal, so the DBA model provides one of the few funding options for the impecunious client. There are problems however, and for my discussion of the conflicting pressures on a DBA funded representative, and the background to the government’s decision to regulate them, see my previous post here.

The Damages-Based Agreements Regulations 2010 came into force in April. They provide for the formal requirements of DBAs, the information that must be provided and, importantly, a 35% cap on the percentage charged, including VAT.

As a former solicitor I still receive email notices of new Law Society practice notes – they are usually prosaic in the extreme, and I delete them, but this bulletin contains the following (controversial?) advice:

Tribunal proceedings are non-contentious business under the Solicitors Act 1974 (“the Solicitors Act”) and, so far as solicitors are concerned, a non-contentious business agreement compliant with Section 57(1) of the Solicitors Act could be used for Employment Tribunal matters.

A conditional fee agreement (as opposed to a DBA) would be enforceable and would not be caught by the Regulations. Such an arrangement might enable you to achieve a greater success fee than would be possible under the Regulations, and still avoid your client risking liability to you if the claim fails.

I don’t know if any solicitors have tried this. But the attitude of solicitor-practitioners shines through, and indeed the Law Society have called on the government to repeal the regulations, contending that the 35% cap will withdraw the possibility of representation from some needy claimants.

Read all, here.

Posted in Costs, Employment Tribunal, Solicitors | 2 Comments