Archive for the 'Unfair Dismissal' Category

Article 6 right to legal representation in disciplinaries

Published
by
Usefully Employed
on March 19, 2009
in Disciplinary, Dispute Resolution regulations, Employment Tribunal, Lawyers, Trade Unions and Unfair Dismissal
. 0 Comments

It’s a common request - “Can I bring a solicitor to my disciplinary?” - and a surprise to many employers that they have a right to refuse. There is a right under the Employment Relations Act 1999 to be accompanied at a grievance or disciplinary meeting by a fellow employee or a trade union representative. There is no right to be accompanied by a solicitor, and it’s easy to understand why. These meetings are internal, they are not concerned with deciding someone’s legal rights or making legal judgments. They are for the benefit of the employer in order that he can decide how to treat an employee, whether it’s a disciplinary sanction or the offering of some sort of satisfaction for their grievance.

Indeed, the language of Article 6 refers to ‘determination of civil rights and obligations’ when referring to the need for an impartial tribunal, and so on. Some new areas risk blurring the lines: there are now provisions for workers to be legally prevented for working with children, in schools, and with vulnerable adults where concerns over their behaviour has come to light. In this situation the effect of the disciplinary proceedings can be said to have consequences that go further than the relationship between the employer and employee. 

In the case of G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin), a teacher was accused of sexual impropriety with a 15 year old, involving a breach of trust. He was found by a disciplinary panel to have been in breach of trust, and the case referred to the Secretary of State to see if a direction should be made forbidding him from working in education. He was refused legal representation at the meeting. He challenged the validity of the meeting by judicial review, claiming that under Article 6 the proceedings were effectively criminal proceedings given the gravity of the allegations and the consequences of adverse findings. In the alternative, he claimed that even were the proceedings civil then they were of sufficient seriousness to require a right of legal represenation under article 6. The High Court found:

In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant’s future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.

It is important to realise that direct enforcement of human rights legislation, and judicial review proceedings at all for that matter, is only possible against public sector employers. Even so, this ruling opens the way for a considerable widening in what procedural safeguards must be put in place for more serious disciplinary cases.

We already have a dodgy employee register…

Published
by
Usefully Employed
on March 11, 2009
in Unfair Dismissal
. 4 Comments

The secret database of construction workers, maintained illegally but used by some big name companies, hit the headlines last week. Ian Kerr illegally maintained a database of some 3,000 workers alongside descriptions of their lazy attitudes, poor timekeeping, and so on. The company has been shut down.

Everyone seems to have overlooked that a register somewhat like this exists anyway, in the form of the National Staff Dismissal Register. I blogged about this back in May and the register would seem to still be in hand, although it has managed to keep out of the headlines. The NSRD was sanctioned by the Information Commissioner after certain safeguards were agreed - and in fairness the scope of behaviour covered is much smaller. Visit its website here.

Charon QC Podcast #102 - Employment Law Update

Published
by
Usefully Employed
on February 15, 2009
in Dispute Resolution regulations, Podcasts, Redundancy and Unfair Dismissal
. 0 Comments

I have recorded another podcast with esteemed blawger Charon QC. We cover:

  • Redundancy generally given the downturn, collective consultation and the impact on law firms;
  • The British jobs issue at the oil refinery;
  • The imminent repeal in April of the dispute resolution procedures, the replacement provisions & the resulting new Acas codes of practice.

 Listen to the podcast here.

Annual Limits Increase details released

Published
by
Usefully Employed
on December 1, 2008
in Disciplinary, Employment Tribunal, Redundancy, Remedies and Unfair Dismissal
. 0 Comments

The most common limits increase as follows:

  • The cap on a week’s pay for Statutory Redundancy Payments, the basic award, and related purposes - up from £330 to £350;
  • Maximum compensatory award on a finding of unfair dismissal - up from £63,000 to £66,200;
  • Guarantee payment during lay offs - up from £20.40 to £21.50.

The new limits will come into force for dismissals (or the particular relevant event) on or after 1st February 2009. The statutory instrument with the full changes is here.

But I don’t want to sack him…

Published
by
Usefully Employed
on November 25, 2008
in Disciplinary, Rambling and Unfair Dismissal
. 1 Comment

In other news this November, everyone seemed to be calling for the sacking of someone. From the social workers charged with the care of Baby P, to foolish radio presenters, dismissal has hit the headlines.

Ross & Brand

What faced the BBC with Ross & Brand was the same issue that faces many smaller employers, just on a grand scale. An employee has done something which is eminently dismissable, but the employer doesn’t want to go through with it, despite pressure to act. A more stereotyped example of such a conflict is when the most successful salesman in the company sexually harasses the receptionist and she demands his dismissal. I’ve missed the boat on this particular news story in terms of adding my comments on Brand & Ross, and like most employment pundits won’t bother because there simply isn’t a legal angle.

Actually, this is my blog, so I will stick in my two cents. I’m a bit of a channel hopper in the car, and I found it difficult to square the Today programme (together with most other media) saying that there was universal condemnation and outrage with Radio 1’s news presenters (10 million listeners daily) saying that almost all the people contacting that station thought the whole incident was blown out of proportion. The silent majority isn’t always who you think it is.

Baby P

Not long after the tragedy came to light, I heard an interview on Radio 4 with a minister responsible for children’s services. The interviewer asked him why on earth no-one had been sacked over the incident. His response was something like “The investigation done so far has not revealed incompetence or misconduct on the part of any individual sufficient to warrant dismissal. The absolute worst thing we could do, both for morale and constructively diagnosing what went wrong and avoiding it in future, is simply find a ’sacrifical lamb’ and consider the matter resolved.” “But,” said the interviewer, “wasn’t Baby P the sacrifical lamb? Isn’t it outrageous that no-one has been held responsible?”

A meaningless and jingoistic response to an intelligent and pragmatic answer.

And finally…

Sack the Strictly Come Dancing judges. OK, perhaps not meant seriously, but dismissal seems like the first solution to trip off the tongue in any dispute. In fact, calling for someone’s sacking is often the most lazy suggestion to a difficult problem (perhaps not John Sergeant’s dancing).

The lesson here for employers is that decisions are rarely black and white. If you always capitulate to someone baying for blood, then you’ll have to justify it at the tribunal. Similarly, burying your head in the sand can get you in even worse trouble. Competing considerations can lead to bad decisions. Don’t lose your sense of proportion, or sense of purpose in running your business.

Dismissal & re-engagement is still dismissal shocker

Published
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Usefully Employed
on August 19, 2008
in Contracts of Employment and Unfair Dismissal
. 0 Comments

…pretty obvious really. An employer will often wish to unilaterally vary a contract, and it may have good or bad reasons for doing so. A key moment when this might happen to a small business is with pay intervals. Many small construction / engineering businesses still have weekly paydays. Obviously this is expensive and increasingly rare, and movement to monthly pay intervals can save a significant amount of money. Some employees bitterly oppose this move however, and I’ve worked with several businesses trying to bring this in. The legal point arises because employees can point to their contracts, which will often state (as it is required to do by s1 ERtsA 1996) that pay is weekly. Moving to monthly pay therefore represents a unilateral variation of a contract, which of course is impossible under contract law.

The remedy is to consult with staff, and look at different methods of softening the blow. In the face of impacable hostility simply serve notice of termination of the old contract with an offer of immediate re-engagement on the same terms save for the pay interval.

This is a huge simplification but if it’s done right and the reasons on the business are pressing enough then the exercise works well - there’s no breach of the contract, there’s no unilateral variation. The employee is offered a choice - sign up to the new contract or don’t, and go home. The employer takes his chance withn unfair dismissal claim. On the facts above the employer would have a good shot at a fair dismissal, with the principal reason for s98 being Some Other Substantial Reason. This type of termination has reared its head in reports, usually surrounding introduction of restrictive covenants to existing staff, or organisational restructures. Obviously the process is fraught with worry and peril, the usual allegation against the employer being that it’s used to mask redundancy or an employee is being “managed out”.

In the recent case of Darby & Anor v. The Law Society [2008] UKEAT the employer, who should have known better, botched up this exercise by muddling its correspondence with words like ‘variation’. That’s fine at a negotiating stage - no-one wants to go through the process if unnecessary - but the cleanness of the procedure was lost. The case is a bit fact sensitive, but this sort of argument should never arise in the first place.

  • Record contractual variations in writing, and assume they don’t exist until this happens;
  • If you dismiss someone, be sure you’ve done it and communicate the reason and the circumstances. If you haven’t dismissed someone, but it might be taken that you have, affirm the employment relationship in writing.

Automatic unfair dismissal wasn’t raised in this appeal, but the statutory procedures would apply equally as they do to other dismissals.

Just one day short of retirement…

Published
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Usefully Employed
on August 8, 2008
in Retirement and Unfair Dismissal
. 0 Comments

…is a dangerous time if you’re an American cop in the movies, you’re bound to get hit with a bullet or an internal affairs investigation.

In the first instance case of Plewes v Adams Pork Produce Limited (reported by Burges Salmon) the employer’s normal (and contractual) retirement date was the day before the employee’s 65th birthday.

The age discrimination legislation provides that an employer may not have a retirement date below 65 unless there is some sort of objective justification (this is difficult to show in most fields). This chap’s was obviously below, albeit by one day.

So, despite the fact the employer seems to have correctly followed the ludicrous statutory retirement procedure, this happened:

The Tribunal held that Mr Plewes’ dismissal was unfair and, in the absence of any objective justification for a lower retirement age under 65, discriminatory. Further, given that Adams conceded that it did not follow a statutory disciplinary procedure as a result of its mistake over the retirement date, the Tribunal also applied the maximum 50% uplift to the compensatory award. … The employee’s dismissal was therefore discriminatory and he was awarded compensation of over £36,000, including an award of £7,500 for injury to feelings.

Ouch. I agree the liability for both unfair dismissal and age discrimination, but I did find myself wondering about the awards. 50% seems a high uplift where the employer followed a comprehensive procedure in good faith - but there is a woeful lack of guidance on the choice of uplift percentages. Also, was there scope in the unfair dismissal award for reducing the compensation on the just and equitable basis? I mean, OK, I’m arguing contribution by way of reaching an age, which seems wrong, but we are dealing with a dismissal that was one day away from being fair and a framework that says retirement dismissal after the age of 65 is acceptable.

I may think this over further, but it’s an odd set of circumstances.

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.

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?