Monthly Archive for January, 2008

Sickness At The Heart of Europe (1)

Published
by
Usefully Employed
on January 27, 2008
in Absence and Working Time Regulations
. 2 Comments

Long term sick absentees from work are a problem. It’s a problem for them, because they’re sat at home generally stressed out about the fact they’ve a job they haven’t seen for months or years - a tie that sometimes can prevent recovery. It’s a problem for the state, which is contributing to their SSP and subsequent incapacity benefit. It’s a problem for the employer, who would rather like to sever the relationship, appoint someone else permanently to the post, and get on with it.

So imagine the ire of employers when it was suggested a couple of years ago that if you were on the sick then you should still get all your holiday pay each year. Example - Bob goes off sick in December 2005. His holiday year is January to December. In November 2006 he rings up his boss and asks to take his WTR-guaranteed 4.8 weeks’ holiday for the last 4.8 weeks of the year and be paid for them. The employer is cross, as if this were correct he’d have to pay Bob holiday pay for a year when he didn’t derive any benefit from employing Bob whatsoever. A similar example would be if Bob gave his notice towards the end of 2006, and asked to be paid in lieu of his untaken holiday.

The Court of Appeal all the way back in 2005 decided this was ridiculous, and in the case of Ainsworth brokered a kind of compromise whereby if anyone didn’t work at all during a holiday year, then they weren’t a worker for the purposes of the Working Time Regs and didn’t accrue an entitlement to annual leave. This remains the domestic position for the moment, and current advice to employers is that even if Bob just comes in for one week of the year then he accrues leave for the rest of the year just as if he’d been at work.

The whole mess (now renamed Stringer) was referred to the ECJ by the House of Lords, and we have now had the opinion of the Advocate General. The AG’s report is not binding, but acts as an expert opinion that is usually followed by the whole court.

In plain English, it provides:

  • You accrue leave when you’re off sick;
  • But you can’t take it when you’re off sick;
  • But you can get a payment in lieu of holiday when you leave.

At least, I think that’s what it means. Daniel Barnett has described the opinion as “arid - verging on incomprehensible” and certainly it makes a typical UK judgment (even a Scottish one) look like the paragon of clarity. I’m no expert on the workings of the European system, but it would appear that all of the parties’ submissions have been translated into German for the AG , and his opinion then written in German and translated into English. Honestly, I’m not being all Daily Mail about this, but surely an AG considering a UK reference ought to have the English fluency to deal with submissions without recourse to translation, and then write his opinion in English. This is simply a practical consideration: the Chinese whispers effect of translation back and forth surely comes with risks of imprecision or missing the point; it certainly makes it a nightmare to read.

Glass Ceiling

Published
by
Usefully Employed
on January 19, 2008
in Discrimination
. 0 Comments

The Times reports that Pinsent Masons is the first law firm to enter Stonewall’s Workplace Equality Index - meaning that it is one of the top 100 employers for gay people. I actually suspect that homophobic discrimination is fairly low in large law firms, and that Pinsents’ placing is more down to a joint initiative between HR & PR than a real representation of different quality of life working there. Money is king in these arenas, and the complete disregard shown for solicitors’ personal life doesn’t depend on who he or she chooses to spend it with. Certainly in my experience a firm will let you get away with any number of personal attributes (positive or otherwise) if you rack up enough hours every month. But similarly, law firms are not the sort of businesses that need to emphasise their diversity policies in order to attract diverse candidates - law has rapidly turned into a profession where women and ethnic and sexual minorities are represented in huge numbers. The lack of these people in senior positions and the judiciary is symptomatic of that rapidity set against the time needed to reach seniority, rather than any glass ceiling.

Crystal Ball

Published
by
Usefully Employed
on January 19, 2008
in Discrimination, Employment Tribunal and Lawyers
. 0 Comments

Blogger Head of Legal, who like me must be sad enough to browse case reports that fall outside his area of expertise, comments on the odd result in Richmond Adult Community College v McDougall [2008] EWCA Civ 4. The actual point of construction in this case is reasonable - it confirms that in deciding whether or not someone can make a discrimination claim on the grounds of their disability, the tribunal can only look at the information available to their employer at the time he chose to dismiss. This mirrors Unfair Dismissal caselaw - looking at the decision in the light of subsequent events isn’t permissible. IMHO this is the only way to meet the purpose of the law in requiring employers to make reasonable decisions. Asking them to gaze into a crystal ball doesn’t help anyone.

The actual result of the case is more disturbing. A lady, who had initially been offered employment, was then turned down because her history of psychiatric illness was discovered. Fair enough, you might think, but her illness was three years behind her, and her psychiatrist had commented that she was “fully able to return to work and [there were] no concerns about her mental health relating to this”. 

She brought a claim under the Disability Discrimination Act. This may seem logical - disability was the main reason for her dismissal. Non-lawyers will however have their views about us vindicated by the fact that the employer, rather than attempting to justify its decision, used the argument that her case actually rested on the fact that she wasn’t disabled. In those circumstances, since the DDA only protects the disabled, her claim must fail. This is a typical “Yes we’re complete shits, but the law allows us to be” attitude, and one that won through.

Note the difference with other discrimination legislation - that doesn’t create a protected class of person, it simply sets out the grounds on which you cannot discriminate. The nature of the complainant is irrelevant; sack a man because he’s gay and it doesn’t matter a jot whether or not he is. If you use the example of poor old Graeme Le Saux, called gay by his fellow footballers simply because he was nifty at the Guardian crossword; his treatment was on the grounds of sexuality, not because of his sexuality.

Another result of this different approach is that non-disabled workers have no protection at all - if someone else applying for the same job as you has worse qualifications, but is hired because his wheelchair will look good in their recruitment brochures, you’ve no claim whatsoever.

Employment Judges

Published
by
Usefully Employed
on January 16, 2008
in Disciplinary, Dispute Resolution regulations, Employment Tribunal and Rambling
. 0 Comments

Employment tribunal chairmen are now renamed Employment Judges - a change which highlights the change in philosophy and attitude in the Tribunal, which seems to completely contrast with the changes occuring in the ‘normal’ courts system.

The tribunal is supposed to be informal, its procedures pragmatic, and its language accessible. So much so, in fact, that in normal circumstances you can’t get legal aid for an ET hearing no matter what your means. Yet look at the developments:

  • They’re now chaired by Judges;
  • In 2004 the existing 21 Tribunal Rules exploded to 61;
  • We have CMDs, PHRs, strike-outs, pre-acceptance procedures;
  • More costs orders against unreasonable litigants;
  • The utterly ridiculous ET1 forms:

Comment has been made in the past on the wording of the standard form ET1, which the Government insists all litigants must now complete in order to bring a claim before the Employment Tribunal. …those who design these forms may care to undertake basic instruction in employment law. - HHJ Peter Clark,  Ellis v Ministry of Defence UKEAT/0034/07

  • …not to mention the impossibility in the first year or two of submitting the blasted things without having to resort to filling them in by hand;
  • And let us not forget the convoluted and spectacular failure of the Dispute Resolution regulations, taking grievances - which had on occasion solved the problem - and transforming them into a legalistic over-technical minefield, together with obliterating the chance of anyone approaching them constructively.

So would we say the Tribunals are becoming more cuddly? Or less cuddly? A cynical view is that this sort of system leads to less hearings at the Tribunal, and thus less money spent, as one side or the other wins or loses on a technicality long before the Tribunal ever gets a chance to fully assess the merits of the case - or simply can’t face the attrition of yet another meeting. An even more cynical view is that the slow walk to enforced Acas-controlled or accredited mediation has even more risk attached of bumping up the legal bills.

Annual Limits Review

Published
by
Usefully Employed
on January 14, 2008
in Discrimination, Employment Tribunal, Redundancy, Remedies and Unfair Dismissal
. 0 Comments

Time for the annual review of financial limits. The two biggies:

  • The cap on a week’s pay when calculating redundancy payments (or the basic award for unfair dismissal) goes up to £330;
  • The maximum compensatory award for unfair dismissal is raised to £63,000.

I’m really not sure if the latter should be retained, especially as the corresponding award in discrimination cases is unlimited. If Alf is sacked after thirty years’ graft for sneezing on the MD’s sandwiches, why is he more restricted in his recovery than when Abdul is sacked for his religion?

The other changes are:

  • Unfair dismissal minimum awards for certain health & safety, sunday working, Working Time Regs, pension trustee, or certain trade union reasons rises to £4,400;
  • … and wrongful expulsion from a trade union bags you a minimum award of £6,900.

All of this applies to dismissals on and after 1st February 2008. The full list of changes can be found here.

Protective Awards

Published
by
Usefully Employed
on January 13, 2008
in Discrimination, Employment Tribunal, Redundancy, Remedies and Unfair Dismissal
. 0 Comments

Consultation, consultation, consultation. The worst crimes imaginable can nip under the radar if you only sit your employees down and talk about how terribly dreadful the situation is, but needs must, and what can we do to make the blow easier? Compulsory collective consultation in redundancy situations involving 20 or more job losses has been around for over thirty years, but we still see new developments.

If you, a company, are contemplating making 20+ redundancies at one establishment within ninety days, you have to spend at least 30 days in consultation prior to the first dismissal. If it’s 100+ redundancies, it’s 90 days. Fail to do this, and your employees can apply to the tribunal for a “protective award”. I personally have never understood the term - it’s a fine for non-compliance, nothing less. A protective award = 90 days’ pay. So, let’s say you’re making 25-odd employees redundant, which indicates in itself you haven’t bags of cash lying around, if you don’t give ‘em 30 days’ worth of consultation (no matter how little effect it might have on the final result) then you cop for 90 days’ pay to each of them. What’s that? 90 days? But we were only supposed to consult for 30! Tough shit. It’s a fine. You should have done it properly. This idea, following Susie Radin in 2004 which finally clarified the award as punitive, has been backed up by the EAT. This particular case has been notified all over the employment news-o-sphere, but I suspect it’s simply the first cock-up to be appealed rather than any shift in practice for most tribunals.

Schadenfreude

Published
by
Usefully Employed
on January 5, 2008
in Discrimination, Employment Tribunal, Lawyers, Rambling and Unfair Dismissal
. 1 Comment

Celebrities and the media, who fancy each other so much that the flirting can make you sick, leave me wondering what the truth is. Newspapers are full of lies - “a source close to…” and “close personal friends” rarely exist, but the glitterati have little to moan about given that they court the attention when it’ll equal more dosh on the release of their next record. What you and I can rarely do is read a scandal sheet and quote it our friends as having any credibility at all.

Judges however, now they have credibility - amongst the public at least. Quiz time! Can you remember who a High Court judge is describing here?

To achieve what he wants without confrontation, he is manipulative and has resort to any means, fair or foul, to achieve his ends. … His success and character have combined to create a personality making him strong-willed and both accustomed to and insistent on getting his own way. He is petulant and given to sulking and walking away from situations whenever he considers himself thwarted. He is not ready to make concessions to others. He is a person who cannot tolerate either criticism or the exercise by management of authority over what he does. … He has the temperament of a prima donna. He always expects and demands compliance with his wishes. … When I asked him about the quality of his powers of recollection, he told me that indeed he did have a terrible memory. That part of his evidence I fully accept. Beyond this where it suited his purposes, he had resort to lies.

Yes, it’s the now-rehabilitated-Radio-2-presenting Chris Evans, suffering a character assassination in response to his attempts to sue for wrongful dismissal from Virgin Radio in 2003. What makes me really enjoy judicial celebrity bashing is that it’s always so well deserved; never having had anyone disagree with them for years, their ego pushes these people on to their own downfall. You see, you so rarely need to go to court. You can just settle. When you’re rich, you don’t need to go at all. Quite why anyone famous ever goes if they’ve got any chance of losing at all is baffling. They just end up looking like the (ginger) twats they are.

Fast forward to the present, and the lady with egg on her face is actress Trudie Styler, better perhaps known as wife of musician Sting. When her pregnant chef, Jane Martin, took a fortnight off with gastroenteritis, she had this to say:

Who the fuck does she think she is? She is my chef in the UK. She needs to be available if I need her, or she should re-think her position.

Nice. Bear in mind that this woman is employed to cook for Sting, Mrs Sting, and their family. And they had a sous-chef. One might think that they could last a fortnight without her. After taking her maternity leave (and on the SMP wages of £100-odd quid a week, mind you, you don’t stay rich by overpaying the domestics), Martin found a redundancy at-risk letter awaiting her. Sure, the other chef had one too, but only Martin’s contained a (sinister?) reference to the fact that when the Chauffeur had left they’d got a “gagging order” against him. When our poor chef was selected for redundancy, and brought her unfair dismissal / discrimination claim, this is what the Employment Tribunal had to say:

… the whole redundancy selection was a sham. It was contrived to cloak the Respondent’s actions with respectability which were transparently designed to dismiss her once she fell from favour with the Sumner family as a result of being less flexible about her work arrangements due to her pregnancy and then later by having a small child to consider. Her dismissal is directly linked to her pregnancy and taking of maternity leave. [It] was badly mishandled and conducted in such an incompetent manner that the true purpose shines through the subterfuge and calumnious actions seeking to suppress the true facts. [Mrs Sting's] involvement is clear. She is without doubt the driving force manipulating others to perform her ‘dirty work’ .

Doesn’t get much clearer than that, does it? But what is beyond belief is not that they did this in the first place, but that they turned down sheer number of chances they would have had to bung her a few thousand quid to go away and keep quiet. The eventual award - £25,000-ish - is nothing to them, and there’d have been no publicity. Now they’re in the papers. So what do you do if you’re Mrs Sting? Pay up and let it lie? Or appeal, because to say such nasty things about you the tribunal must have been biased? I refer you to my ego comments above.

So well done, Trudie Styler, Mrs Sting, now you’ve lost twice, and got in the papers twice. Due to appeals being reported, your own character is now writ large on the internet for all to see.

As well as finding another person for my list of who’s first against the wall when the revolution comes, it’s also quite nice to see here that the employer’s far superior legal resources did them naff all good in this case.