Twitter is the social networking phenomenon de jour. I’m on there, see:
Now I’ve joined and mentioned it to people, I see with a groan that it puts up stats as to how many ‘followers’ I have. Cue months of embarassment caused by lack of friends.
Monthly Archive for May, 2008
An odd situation arises from the finding in Oyarce v Cheshire County Council [2008] EWCA Civ 434. In most discrimination cases, all the Claimant need do to prove facts that would, in the absence of an adequate explanation, support his claim. The burden of proof then moves to the Respondent to disprove those facts or successfully contend that they do not constitute discrimination. This is often referred to as the Claimant creating an ‘inference’, but that word does not appear in the legislation. The Race Relations Act is older than I am, but the reversal of burden of proof was added in 2000 to comply with an EU Directive that required it.
In this case, Oyarce won at first instance because she crossed the first hurdle and created the inference, and the Respondent were unable to meet their evidential hurdle of disproving her case. Her claim however was for victimisation which, perhaps inadvertently, is not subject to the reversal of the burden of proof. This is upheld, which means that a tandem system of proof will run in cases where (as there often is) both claims of victimisation and ‘regular’ discrimination.
This is a temporary situation which applies until the discrimination statutes are consolidated into a Single Equality Act.
Croke v Leeds City Council [2008] UKEAT 0512_07_2905 is a good example of a Tribunal’s decision to strike out (without hearing evidence) a discrimination case which had no reasonable prospect of success being upheld. A strike out is a draconian step for any tribunal to take, as it effectively prevents the Claimant having a full hearing of his complaint. Here the Employment Judge was clear that the facts as pleaded by the Claimant would not engage the laws which he claims to enforce. As a result he didn’t even hear formal evidence from the Claimant, although he did engage in a “long discussion” with him to see if he could unearth even a hint of a possible claim. It’s good to see the EAT upholding both the pragmatic conduct of the hearing, and the decision itself, as in a costs free environment such as the ET meritless claims are still a huge burden on the Respondent.
An interesting study bears out what I’ve noticed myself - the suit is in decline in the British workplace. This study, by the Aziz Corporation, surveyed employers for their attitudes towards office dress. Less than one in four offices now require men to wear suits, most opting for a ’smart casual’ approach with suits reserved for business meetings (I’d guess with clients or other organisations).
This was the rule in my last employment, and my experience matches the results of the survey - when allowed to dress down, most employees still wish to appear smart and professional. 90% of employees do not believe that wearing a suit necessarily makes you look smart.
Dress codes are symbols of their times, the wigs and gowns worn in court were first donned at a time when they were simply fashionable and smart attire. The demise of the suit can perhaps (and this is only a theory) be linked to the rise of women in professional workplaces. Smart clothing is not so prescriptive for women as it is for men, and once the link between the clothing and the service is broken then the human desire for self-expression comes to the fore.
As a barrister it’s likely I’ll be required to wear a suit to work for many years to come, but at least this means I needn’t get too concerned about fashion when I get up in the morning.
I remember Collidge -v- Freeport plc [2008] EWCA Civ 485 when it was at first instance, dealing as it does with the very common clause found in compromise agreements that:
“Subject to and conditional upon the terms set out below, [Freeport] will pay to you the sum of £445,680 gross as compensation in respect of the termination of your employment…
“You warrant as a strict condition of this agreement that as at the date hereof… there are no circumstances of which you are aware or of which you ought reasonably to be aware which would constitute a repudiatory breach on your part of your contract of employment which would entitle or have entitled the company to terminate your employment without notice”.
… in other words that subject to the warranty being true, we’ll pay you lots of money. The warranty was not true. Collidge had done bags of things which would have entitled Freeport to summarily dismiss him.
The judgment confirms that in this agreement, the warranty was a condition precedent. In other words, all performance by Freeport of its obligations under the agreement was subject to the warranty - rather than it simply having a remedy of damages for its breach. Compromise agreements are tricky - they have to be very tightly drafted according to the individual circumstances, but increasingly are simply run off as precedents. Given that the context in which the agreement was signed, Collidge may well have thought that he was protected from subsequent discoveries of impropriety, so this case emphasises both the quality draftmanship required on compromise agreements as well as the thoroughness with which the employee’s solicitors must advise.
The Code is intended to come into force in April 2009 at the same time as the abolition of the hated statutory Dispute Resolution procedures, and is currently open for consultation. Acas have taken the tack of having two documents - a Code of Practice, and a document containing wider guidance. The consultation document notes that many have called for a shorter, simpler code, and this indeed is what they’ve delivered. By way of reminder, failure to follow the Code of Practice will not in itself be determinative of a legal issue such as fairness, as is the current case with the statutory procedures. Instead, it will be a factor to which the tribunal can have regard, and non-compliance will also empower the tribunal to adjust any compensation by up to 25%.
This seems sensible - it means the code of practice rewards compliance and punishes non-compliance, but isn’t so absolute in its effect such as to result in injustice.
I’m pretty stunned by the simplicity of the document, which can be found here. Those used to Acas guidance will have been checking the amount of paper in the printer, but no need here. The full document, including the consultation what nots, is a mere 14 pages. The steps that should be followed are fairly uncontroversial, but have a look for yourself. One paragraph that did catch my eye was this:
23. Some acts, termed gross misconduct, are so serious that they may call for summary dismissal for a first offence.
What this, with its surrounding paragraphs, says is that dismissal on the first offence can only be for gross misconduct. Whilst that will be the case 95% of the time, I’m not sure that as a statement it’s correct in law.
…it’s not exactly straightforward either, but any competent adviser can identify warning signs that mean the issue should be looked at. Say, for example, Mr Bloggs is tired of running Bloggs pharmacy, so he closes it and reaches a financial agreement with the local Londis or Spar or whatever that they’ll plonk a Bloggs Pharmacy at the back of their store as a franchise. As the new pharmacy won’t be owned by Bloggs he gives his staff notice of redundancy. Now, was there a transfer of an undertaking, business or part of an undertaking or business situated immediately before the transfer in the United Kingdom to another person where there is a transfer of an economic entity which retains its identity? Yes there was. I honestly don’t see how you can get round it. So, take the same situation, with Post Offices in major towns (such as my own), where they’re closed down and bunged at the back of WH Smith. Do the same principles apply?
For some mad reason the Post Office don’t ever seem to have considered the possibility - rather than start consultation on a transfer they simply wrote to offer a choice between voluntary redundancy or redeployment to another site. The unions are now bringing a claim based on failure to consult (easy money, 13 weeks’ pay per employee) that could cost them as much as £2,000,000. And all for failure to consult. Such is the elementary nature of the TUPE claim ene could cynically imagine that the possibility occurred to the Post Office yet they decided on a commercial basis not to proceed with consultation. But that would indeed be cynical.
Everyone’s been laughing it up at this case where a man dismissed from his job as a kitchen porter at a hotel brought an unfair dismissal claim, stating that his dismissal had been orchestrated by Jehovah’s Witnesses. According to the ET:
“The Claimant made repeated references in his claim form to secret video recordings carried out on behalf of the Watch Tower Society; he talked about the Watch Tower Society instigating his dismissal; coming into the Hotel to turn staff against him; spreading rumours about his sexuality; preventing witnesses from assisting him; installing secret cameras in changing rooms and in his room; falsely imprisoning him in a Psychiatric Hospital; and showing the tapes to the then Prime Minister, Tony Blair.”
It isn’t funny though, not really. As much as us lawyers smirk in amusement at outlandish and delusional claims in front of the court, take a moment to put yourself in the shoes of the Claimant himself. I can’t quite imagine what it must be like to be so utterly convinced that you’ve (a) been wronged and (b) that everyone’s been corrupted against you. In practice once I dealt with a county court claim where the Defendant would write letters to the county court that were ten or twelve pages of bitter anguish at not one, not two, but four of the district judges there having been bribed to find against him. DJ’s must be cheap - the claim was only for about £1500, but what can you do about people like this? In the tribunal claim it was found that the Judge had no right to involve the offical solicitor in the case, and simply had to deal with the Claimant’s claim as it was presented.
This is off-topic, but I think for practical purposes the idea that you humour someone in this state is barbaric. Is it right that if someone doesn’t actually pose a physical risk to themselves and others we’ll allow them to subject themselves to so much misery without intervention?
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.