One of the amusing things about writing this blog is that my readership figures are, so far, shall we say, exclusive. It’s therefore gratifying to see today that the name of the blog, when typed into Google, is the first result. I can’t imagine it has any tangible benefits for the blog itself, but it just seems right somehow.
Monthly Archive for December, 2007
Road safety campaigners dream of giving mobile phone use and speeding the same stigma that attaches to drink driving. If someone were to boast that they routinely drank four pints* then drove home they would neither win friends nor influence people (except perhaps to shun them), yet it seems to be perfectly legitimate to villainise speed cameras and admit to texting on the motorway.
Such a conversation will now usually be met by the other party relating the news that use of a mobile phone will land you in prison for two years - this is untrue, and all it represents is that prosecutors have been told to treat it as dangerous instead of careless driving. This will only become an issue if your mobile phone use is actually affecting your driving, and you’re only likely to see prison if the effect is ploughing into a bus queue. Criminal law is not my area of expertise however, and you’d do well to read these observations.
Employers should, if they’re careful, issue a dictat against illegal phone use by employees. This may go some way to save them from a prosecution themselves - entirely possible if they’ve ’caused or permitted’ the offence in the first place. No doubt if a company also routinely required their employees to answer their mobile phones while driving, a Health & Safety conviction wouldn’t be out of the question either.
*bizarrely enough (and strictly OT), four pints is the official level at which it becomes binge drinking, and therefore the level which the government campaign for people to stay underneath. I think that a campaigner asking some rowdy lads on a Saturday to stick to three pints is pissing into the wind, and I’d be surprised if four is enough in most people to trigger the public urination / assaults on police officers problem so enjoyed by TV programme makers. I’m not saying that it’s good for you, or OK, to drink more than that (although I’ve enjoyed doing so on occasion), just that if you take what is currently fairly average consumption, and attach the label ‘binge’ to it, then you just devalue the entire label and people stop listening to you at all. If they’d any sense they’d launch a national campaign telling boozy thick-necked men called Darren that ten (or maybe even twelve) units should be their limit on a night out. This equates to five or six pints, enough to get lary and have a good time, but not enough to be sick all over someone else’s shoes then pre-emptively punch him in the face.
It’s not ideal, but at least it would be a clear and achievable guideline, something health campaigners seem utterly unable to produce.
The Employment Appeal Tribunal took part in some performance theatre last month - no writhing around in a leotard with a goldfish bowl on their head though, and no walking round in animal suits. Such things are unbecoming to a Circuit Judge. Instead they heard the appeal of Anthony Padgett. He applied to the Tate Modern for a commission for an installation where he would build a replica of the gallery’s founder Sir Henry Tate’s memorial, found at Normanton Cemetery, entirely out of sugar lumps.
Whether or not this is good art I don’t know, but I can’t help thinking it would have looked better if he had built a replica of the man himself. Padgett’s application included the fact that he, like Tate himself, was a Unitarian. On his application being rejected, the gallery presumably couldn’t have been more surprised to receive a complaint that theyhad discriminated against him on the grounds of his religion. His requested compensation was a shortlisting for the 2005 Turner prize, the work of art being the complaint itself.
You can read the judgment (it’s refreshingly short) or, better, watch Padgett bless his case papers before going into the appeal. In a nutshell, he lost because this sort of discrimination is still only aimed at employment relationships. If you have a job, or are applying for a job, you get protection. Writing (more or less speculatively) to a gallery asking for a few square metres of space and some money please isn’t close enough.
You may conclude I’m being unduly critical of Padgett, but I do feel impatient with those who represent an everyday action as having artistic value because they’re doing it. Padgett has either applied for something, been told he’s no good, had a hissy fit and claimed discrimination, or is pretending that this is the case in the name of art. If it’s the former then he hasn’t done anything different to hundreds of people filling in tribunal forms every day, so where has he innovated? Where is the art, beyond that expressed by ordinary people, which justifies a Turner nomination? If he’s pretending to be aggrieved, then those who suffer real discrimination, and have had their remedies hijacked in the name of Padgett’s ego, can be justifiably insulted.
Don’t expect anyone to shed a tear over the abolition of the dispute resolution procedures - the prescriptive procedures that require an employer and employee to run down a check-list of frustrating steps before they can thrash it out in the tribunal like they both want.
The new provisions in a nutshell are:
- The dispute resolution procedures are abolished;
- They’re replaced by a discretion available to tribunals to alter compensation by up to 25% where a relevant Code of Practice hasn’t been followed.
These changes will be implemented sometime in 2009 - although if it were up to me it’d be next year.
Acas have blamed lawyers for the failure of the procedures - but this is nonsense. The procedures did increase the use of lawyers, but this was the fault of their inflexibility. A case I dealt with recently had an employee physically attack another in a canteen. The employer suspended the pair of them, interviewed them and the dozen-odd witnesses, and concluded that one employee (who had a reputation and indeed a criminal record for unprovoked violence) was solely to blame. He held a disciplinary hearing and dismissed for gross misconduct. Applying any standard of common sense, this was a fair dismissal. But the failure to reduce the disciplinary charges to writing, and send them together with a lot of other nonsense to the employee prior to the disciplinary hearing, made the dismissal automatically unfair. From now on, this employer isn’t going to do a damn thing without calling up his lawyers first, as his ability to deal with his employees in a fair and transparent way (the actual policy behind the procedures) has been utterly destroyed.
With these changes, and the continual increase in mediation, Acas’s role and power in employment disputes is getting steadily greater. I have some reservations about Acas:
- The advisors on their telephone helpline are mostly good, but some live in a complete cloud cuckoo land, replete with bosses and workers engineering social nirvana through the use of staff handbooks and consultation meetings - this translates into incorrect advice, motivated by the organisation’s policies;
- Their conciliators - who ring up both sides in an employment dispute to attempt to persuade them to settle - are judged by the number of cases they successfully conciliate, but their refusal to give legal advice on the merits of a party’s case means that often they just badger people. “Ooh, go on, you’re only £200 apart” - that party nevertheless being £1000 down on what the tribunal award will certainly be doesn’t matter. This isn’t everyone at Acas, but it’s a fair description of at least a third of the conciliators I’ve dealt with. This leads to injustice.
I’ve a feeling it’ll be a very different world in employment law in a few years, but will it really be any better than it was pre-2004?
Not many people realise you can still compulsorily retire someone at 65. Before you can though, you have to adopt some stupid procedure where you give them:
- 6 months’ notice;
- Invite them to come to a meeting at which they can ask to work longer (which you can just refuse because you hate them);
- When they take offence, offer them an appeal (which you can find against them, because you hate them).
All the usual stuff about being accompanied by trade union whatsits and so on applies as usual. What’s daft is if you don’t go through the rigmarole of all the meetings then the dismissal’s unfair, but at no point do you have to make a decision that’s at all reasonable. Sample meeting:
Old man: But I need my wages to live, please let me continue to work… I’ve worked here twenty years… Director: No, I’m sorry, I’m confirming your retirement. Old man: But why? In god’s name why?! Director: I’m sick of the way you slurp your tea. Old man: That’s ridiculous, I appeal! <the next week> Managing Director: Sorry Old Man, your appeal is unsuccessful. Old Man: But why? Managing Director: Because I just feel like being a complete bastard today.
The madness of it all is that this dismissal is completely fair, yet the law requires the company to waste the Old Man’s time, and give him false hope, by putting him through a procedure. It’s this sort of tick-box law that doesn’t do anyone any good.
Anyway, the reason for the post was that the Employment Tribunals have now ordered a stay on any cases which claim that a retirement dismissal is unfair. Unlucky retirees will now have to wait until the European Court of Justice decide if the UK is allowed to have a compulsory retirement age at all. More news on this in about a year’s time.
This article is the stupidest thing I’ve ever read. Not the law - although it’s easy to have doubts when the National Trust are prosecuted for letting one of their six million trees fall down - it’s the terrible journalism. What this article really says is… send your employees go-karting and if one of them is killed your company will be fined millions of pounds. This is rubbish, and ignores the legislation completely. Can it really be said that if you book your employees a day out with a respectable outdoor pursuits company - and maybe even double check that they’re insured and have a health & safety policy - and someone is killed that the company is guilty of a gross breach of its duty of care? Will any juries really come to this conclusion? No. The article is really a disguised advert for Croner Consulting, so that they can sell Health & Safety solutions to panicked employers. In fact, it’s a bit like this other Times article which is a scare-mongering disguised advert for Peninsula, a similar company. It contains at least one legal error - can you spot it? I used to like the Times, but some of their recent articles make me want to vomit.
One of my favourite ever dirty lawyer tricks involved the three month tribunal deadline for unfair dismissal. Employees are expected to appeal their dismissal, and if they don’t they can expect their compensation to be reduced at the tribunal. In recognition that this can take some time, if the appeal process is still ongoing at the time the three months expire then the limitation period is automatically extended for a further three months.
My advice to employers was obvious - if you’re about ten weeks into an appeal process anyway (which happens far more often than it should), hang on a bit and make sure they get the appeal outcome a day or two before the three months expire. Bingo! The employee doesn’t dare bring the claim before the appeal outcome, because of my oft-repeated dire warnings about compensation being reduced, and the limitation period isn’t extended because the disciplinary process was complete by the time the three months ran out. The result? The employee has a one day window to fully digest the appeal outcome letter, fill in his tribunal form and get it to the tribunal.
Don’t judge me too harshly. I always knew that if they put the claim in late they’d probably get it accepted anyway, on the basis it wasn’t “reasonably practicable” to get it in before. The fact that my letters suggesting the opposite may have made the odd one give up his claim - is it really my fault? Really?
Of course it was. But that was my job.
Telling an employee the same thing now would be naughty practice, as only now (a full three years after the rules came in) is there authority to say the claim will be accepted in this situation.
…shouldn’t be discussed at work. If I’m ever (god forbid) a boss of anyone at all, I’ll immediately dictate that within the workplace, no topics are to ever be discussed if they’re not relevant to making me money. Should an employee be so lucky as to enter my intimate circle, a contrary ban on shop talk will be effective in the pub.
You see, we have to go to work. When our social or public life is full of people talking offensive nonsense, we can engage, disagree, protest, argue, or simply ignore. At work when someone starts spouting off you can’t get away from them and still pay the bills each month, and life suddenly becomes just a little bit more miserable. One of my favourite bloggers, who is a Victorian Maiden no less, talks a great deal of sense here about the recent row in the Sudan. All of her points hold true, but not, I’m afraid, in the workplace. There, you do have a right not to be subjected to anything that (at least from a half-reasonable point of view) you find offensive.
The rule of thumb is that an employee gets three months to bring a tribunal claim. This can be extended in a convoluted variety of ways, but generally you’re mad not to at least bung in a form during this period. Get sacked on the 2nd December, you’ve got until midnight on the 1st March to get your claim to the tribunal offices. I know that I’ve faxed a tribunal claim at ten pm on the last day, and gone home suffering from palpitations. This chap’s representative was not so lucky, submitting a claim online only for it to arrive at eight seconds past midnight.
There are two issues to come out of this, the first of which is whether three months is enough. Sue someone for personal injury, you get three years, sue them on a contract you get six years. Why the very short timescale for unfair dismissal? This is especially true when the fact you’ve been sacked is likely to have turned your life upside down anyway, and you may be a bit too busy signing on, going to interviews and paying the bills to fill that form in. Limitation periods in general are a good thing, but let’s all take a step back: would six months really cause anyone any problems? No.
The second point is that a Claimant would, again, be mad to use a representative that is unregulated. This representative won’t be insured, qualified, or regulated by any body to which you can make complaints. In practice I once saw a no-win/no-fee representative under-settle a Claimant’s case without her authority, then promptly go into liquidation without paying her anything at all. Solution? None. If you’ve a tribunal claim, then you should:
- See if your home insurance includes legal expenses insurance - bingo, your case is paid for;
- See if a non-profit organisation, like your local law centre, CAB, or a charity will do it;
- Ask all your friends if they know a good solicitor for employment law; or if none of them do:
- Find one you like the look of that specialises in it. Employment isn’t something you can do as a sideline. If you think your last solicitor would be a good choice because he did such a thorough job of your conveyancing, and because his musty office reminds you of visits to your grandparents when you were small, then think again.
I don’t want to be unfair, there are no doubt many good non-solicitor organisations out there doing a good job. Until the cowboys pack up and leave town though, steer clear.
