Archive for the 'Employment Tribunal' Category

Law in the 21st Century

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on March 26, 2008
in Employment Tribunal, Lawyers, Rambling and Solicitors
. 2 Comments

The Law21 blog, and this post in particular, should be compulsory reading for any member of the British legal profession. The focus on new provision of legal services tends to concentrate on work for individuals - divorces, probate, and so on. In employment law circles however the change is already happening. First Assist, Peninsula, Croner Consulting, EEF and the rest are hardly household names but between them conduct a huge part of Respondents’ litigation in the tribunals.

Many employers simply want to pay an annual premium and be insured against any claims they receive. Any large employer, even if it is well behaved, will receive a claim one day,  and fewer and fewer of these are farmed out to traditional law firms and counsel. If you are a commercial company who has sold an insurance policy then it makes much more financial sense to hire staff yourselves to conduct litigation and advocacy than to farm it out. Why? Because you retain the profit margin. Without any SRA or Bar Council regulation you can also be ultra-competitive in your hourly rates which means you achieve a better loss ratio for the insurance company.

Counsel still have their place for complex cases, or for where you simply must have a bum sat on a tribunal seat somewhere far away at very short notice, but as the Law21 blog notes: traditional law firms must forge alliances with the larger providers if they are to retain the work.

Employment is ahead of the game as tribunals don’t require a special right of audience, and (insured) work can therefore be undertaken by companies without any form of regulation at all. Once Alternative Business Structures and “soft-touch” regulation comes then all manner of commercial legal areas will go the same way, and it’ll be sink or swim for law firms and lawyers. Being legally qualified will be no guarantee of a place in the new order.

Crystal Ball

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on January 19, 2008
in Discrimination, Employment Tribunal and Lawyers
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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

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on January 16, 2008
in Disciplinary, Dispute Resolution regulations, Employment Tribunal and Rambling
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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

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on January 14, 2008
in Discrimination, Employment Tribunal, Redundancy, Remedies and Unfair Dismissal
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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

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on January 13, 2008
in Discrimination, Employment Tribunal, Redundancy, Remedies and Unfair Dismissal
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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
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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.

Dispute Resolution Regulations - missed by no-one?

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on December 13, 2007
in Disciplinary, Dispute Resolution regulations, Employment Tribunal and Unfair Dismissal
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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?

Stringing things out

Published
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on December 6, 2007
in Employment Tribunal, Limitation Periods, Solicitors and Unfair Dismissal
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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.

A miss is as good as a mile…

Published
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Usefully Employed
on December 1, 2007
in Employment Tribunal, Limitation Periods, Solicitors and Unfair Dismissal
. 2 Comments

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:

  1. See if your home insurance includes legal expenses insurance - bingo, your case is paid for;
  2. See if a non-profit organisation, like your local law centre, CAB, or a charity will do it;
  3. Ask all your friends if they know a good solicitor for employment law; or if none of them do:
  4. 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.