Archive for the 'Unfair Dismissal' Category

Unfair Dismissal - Burden of Proof

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Usefully Employed
on April 21, 2008
in Discrimination, Employment Tribunal, Solicitors and Unfair Dismissal
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My earlier assurances that my blogging wouldn’t be interrupted by work have been shown to be completely hollow - over two weeks have passed since my last post.

And it’s not even as if there’s been nothing to report. Favourite case recently must be Kuzel v Roche Products Ltd which talks of the burden of proof in Unfair Dismissal cases. Generally in law the person advancing a case, eg you saying that your neighbour cut down your hedge, the state saying you murdered him in retaliation, has the burden of proving the allegation. Not so in unfair dismissal. S.98(1) ERA 1996 moves the burden on to the employer. So if I say “you sacked me for an absolutely bloody stupid reason” then my employer doesn’t have to disprove my version of events to oppose the claim, they have to come up with their own valid reason for my dismissal and prove that. The reasons I advanced don’t really come into it.

In this case however the employee had advanced whistleblowing (protected disclosure) as the reason for her dismissal. It’s obvious why she would make sure she did this if she thought she might have a shout - whistleblowing claims aren’t subject to the financial limits of normal unfair dismissal and include an award for injury to feelings. The employer ran some taking-the-piss SOSR defence about the relationship having broken down. The tribunal stuck two fingers up at everyone by finding that dismissal was for a third reason, against the pleadings of both parties. The consequence for the simple unfair dismissal claim is obvious - it succeeds as the potentially fair reason advanced by the employer was not found to be proved. The odd consequence is for the whistleblowing claim - where does the burden of proof lie? Traditionally it should be at the employee’s door, it’s her case and her allegations. The statute is largely silent on the issue, the reversal of the burden of proof only seeming to explicitly apply to the reason actually advanced by the employer to be the reason for the dismissal. Well for once we’ve some useful guidance, produced by the EAT and approved by the Court of Appeal:

  1. Has the employee shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?
  2. If so, has the employer proved his reason for dismissal? Failure to do so will render the dismissal unfair, and then coupled with a primia facie case from the employer will entitle the tribuanl to infer that the employee’s stated reasons are correct.
  3. Has the employer disproved the reasons advanced by the employee? Even if the employer has failed to prove it’s own reason for the dismissal it may still have disproved that of the employee.
  4. If not, dismissal is for the reasons stated by the employee. It is not however, at any stagae, for the employee to prove her reason.

I’ve mucked around with the above to apply generally.

The Court of Appeal seem to have taken the line that this case is one for minority interest, stating that it shows how worked up lawyers can get about something like the burden of proof. I agree, but not with their observation that this sort of case will be rare. Protected disclosures are often presented in conjunction with a general claim for unfair dismissal, and its similarity to a discrimination claim may well mean that the facts coincide with the parties having fallen out generally. The unfair dismissal might well then often succeed without the whistleblowing. The same can be said about maternity-related dismissals.

 

Agency Workers

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Usefully Employed
on February 6, 2008
in Status and Unfair Dismissal
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A neat summary of the situation at present:

The question of whether a claimant in an unfair dismissal case is or is not an employee within the meaning of the 1996 Act is increasingly litigated before employment tribunals in unfair dismissal cases, particularly those brought by workers on the books of employment agencies. This is not surprising in view of recent developments: the length of the qualifying period for protection has been reduced to 1 year making it possible for more “temporary workers” to qualify for protection; the maximum award of compensation for unfair dismissal has been substantially increased making it more worthwhile for claims to be brought and providing employers with an additional reason for resisting claims; and, most important of all, there has been an explosion of numbers in the workforce (estimated at 1.3m) engaged to work under arrangements with employment agencies.

This case in the Court of Appeal, James v London Borough of Greenwich, has caused no end of grumbling in employment law circles at the failure of the court to lay down specific guidelines as to when an agency worker will become an employee of the end user. God knows why, previous EAT cases had made it simple enough. The hysteria that followed Dacas never made any sense - a bit of obiter chucked in that it would be possible in some cases to imply an employment contract in those circumstances wasn’t controversial.

What was controversial, when you take a step back, was the idea that this possibility was ever going to upset the statutory restriction of unfair dismissal rights to employees (unlike, for example, discrimination law), and the normal rules of interpretation of contracts.

Rights for agency workers is a real political hot potato, and change is needed, but frequent finding of employment relationships in genuine agency arrangements could cause huge economic upheaval. The courts were never going to do it lightly: they haven’t the balls, and it doesn’t make sense anyway.

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

Published
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Usefully Employed
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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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.

Dispute Resolution Regulations - missed by no-one?

Published
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Usefully Employed
on December 13, 2007
in Disciplinary, Dispute Resolution regulations, Employment Tribunal and Unfair Dismissal
. 0 Comments

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?

Logan’s Run

Published
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Usefully Employed
on December 7, 2007
in Discrimination, Retirement and Unfair Dismissal
. 1 Comment

Not many people realise you can still compulsorily retire someone at 65. Before you can though, you have to adopt some stupid procedure where you give them:

  • 6 months’ notice;
  • Invite them to come to a meeting at which they can ask to work longer (which you can just refuse because you hate them);
  • When they take offence, offer them an appeal (which you can find against them, because you hate them).

All the usual stuff about being accompanied  by trade union whatsits and so on applies as usual. What’s daft is if you don’t go through the rigmarole of all the meetings then the dismissal’s unfair, but at no point do you have to make a decision that’s at all reasonable. Sample meeting:

Old man: But I need my wages to live, please let me continue to work… I’ve worked here twenty years…
Director: No, I’m sorry, I’m confirming your retirement.
Old man: But why? In god’s name why?!
Director: I’m sick of the way you slurp your tea.
Old man: That’s ridiculous, I appeal!
 <the next week>
Managing Director: Sorry Old Man, your appeal is unsuccessful.
Old Man: But why?
Managing Director: Because I just feel like being a complete bastard today.

The madness of it all is that this dismissal is completely fair, yet the law requires the company to waste the Old Man’s time, and give him false hope, by putting him through a procedure. It’s this sort of tick-box law that doesn’t do anyone any good.

 Anyway, the reason for the post was that the Employment Tribunals have now ordered a stay on any cases which claim that a retirement dismissal is unfair. Unlucky retirees will now have to wait until the European Court of Justice decide if the UK is allowed to have a compulsory retirement age at all. More news on this in about a year’s time.

Stringing things out

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

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
by
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.