Author Archive for Usefully Employed

Suit You

Published
by
Usefully Employed
on May 28, 2008
in Discrimination and Rambling
. 0 Comments

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.

Compromise Agreements - subsequent discovery of misconduct

Published
by
Usefully Employed
on May 22, 2008
in Compromise Agreements, Solicitors and Unfair Dismissal
. 0 Comments

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.

Acas consults on draft Code of Practice on discipline and grievance

Published
by
Usefully Employed
on May 22, 2008
in Disciplinary, Dispute Resolution regulations, Employment Tribunal, Grievance and Unfair Dismissal
. 0 Comments

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.

TUPE isn’t rocket science

Published
by
Usefully Employed
on May 14, 2008
in TUPE
. 0 Comments

…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.

 

Delusional

Published
by
Usefully Employed
on May 10, 2008
in Rambling and Unfair Dismissal
. 2 Comments

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?

Blacklist

Published
by
Usefully Employed
on May 8, 2008
in Constructive Dismissal, Disciplinary, Discrimination and Unfair Dismissal
. 2 Comments

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.

Solicitors - Qualified for…

Published
by
Usefully Employed
on April 23, 2008
in Lawyers, Rambling and Solicitors
. 5 Comments

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.

Phoenix jiggery-pokery

Published
by
Usefully Employed
on April 23, 2008
in TUPE and Unfair Dismissal
. 0 Comments

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.

Chefs

Published
by
Usefully Employed
on April 21, 2008
in Rambling
. 1 Comment

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.

Excavating a Sharp pain in the family jewels

Published
by
Usefully Employed
on April 21, 2008
in Constructive Dismissal and Unfair Dismissal
. 0 Comments

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.