Wednesday, November 23, 2011

Employment Law It Is A Changing (Again)

The Government has announced its response to the consultation on resolving workplace disputes. The headlines are:-

Steps will be taken to encourage more mediation

All claims will have to be notified to ACAS before an Employment Tribunal claim is brought, and parties will be given the option (but not forced to) of trying to conciliate the Claim first. There will be some changes to the rules about time limits as a result.

The qualifying period of continuous service for an Unfair Dismissal claim will be raised to 2 years from the current 1 year

There will be a fundamental review of the Employment Tribunal Rules of Procedure

The state will no longer pay witness expenses, and these will potentially be recoverable from the losing party

Tribunals will have the power to impose penalties (i.e. fines) on employers who breach employment rights, in addition to them having to pay the employee compensation

The maximum deposit that can be ordered will double to £1000 and the maximum costs award that can be made without a County Court assessment will double to £20,000

Steps will be taken to simplify the Compromise Agreement process and they will be renamed Settlement Agreements

There will be a presumption that Witness Statements will be taken as read rather than read aloud

More cases will be heard by Judge alone, especially in the Employment Appeal Tribunal.

A separate consultation is to follow about fees for bringing a case in the Employment Tribunal but it is implicit in the response to this consultation that the Government still fully intends to proceed with that plan.

Some of these are sensible time and costs saving measure but since most parties try to resolve matters before litigation if they can, and since ACAS can always assist if asked, it is hard to see that the conciliation rules will make much difference. Similarly increasing the qualifying period will just encourage people to claim for discrimination, whistleblowing and the like where there is no such requirement - and which tend to be the most complex and expensive claims.
At the same time as publishing the response to the consultation, Business Secretary Vince Cable has also announced a number of other areas where there may be reform. These are:-

Considering whether firms with less than 10 employees will be exempt from being sued for Unfair Dismissal if they dismiss the employee with compensation

Consulting on whether employers should be allowed to have "protected conversations" with employees which would allow them to have frank discussions about poor performance without fear that they could be used in evidence at a Tribunal later

Considering whether the mandatory 90 day consultation period for 100 or more redundancies should be reduced to 30 days

In a previous blogpost I commented on the practical problems with the first of these possible ideas. The logic behind giving people less rights if they work for a small employer is unclear - surely this will make it less easy for them to attract staff? And won't it discourage employers from expanding their business if their employees will have more rights once there are 11 of them?

The concept of protected conversations is also likely to be a minefield. Will it be "anything goes"? Presumably not. Employment Tribunals have already shown a willingness to ignore the "without prejudice" label if it is attached to a conversation which is obviously discriminatory or wrong. And if someone is sacked after a series of protected conversations, how will the employer prove that they acted reasonably if they cannot give evidence as to the warnings the employee was given?

It remains to be seen how many of these proposals/ideas actually make it into law.

The backdrop to this is a view that it is too easy to take an employer to Tribunal and that they are swamped with spurious claims - a view for which there is not in fact much evidence.

Monday, November 21, 2011

Facebook Comments On Trial - Be Careful What You Say

Two recent Employment Tribunal cases have shone a light onto the problems which can arise when employees make comments about work on Facebook or other social networking sites.

The outcome of the 2 cases was very different.

Mr Crisp worked for Apple. He made some critical comments about their products on Facebook. He had "private" settings so that only his "friends" could see them. One of his "friends" was a colleague, and printed off the comments and showed them to the boss (which rather suggests that he was a "friend" in the Facebook world and not a "Friend" in the real world!)

As a result Mr Crisp was disciplined, and dismissed for gross misconduct.

At the Employment Tribunal he tried to argue that the comments were private and therefore protected by his rights under the European Convention on Human Rights to privacy and freedom of expression. It was held that by definition nothing on a social networking site was private, since any of his friends could copy the comments and publicise them more widely. This fits in with previous case law about postings by employees on websites about their private sexual activities. The outcome might not be the same in the context of a private conversation with a friend in the pub which the boss sitting around the corner happened to hear.

The Tribunal's decision was heavily influenced by the fact that Apple had a clear social media policy and that Mr Crisp had been given clear instructions whilst training that derogatory comments about the company's products were strictly forbidden.

Does this mean that the more a company cares about its image/the more it has a reputation to protect the more likely a dismissal will be to be fair? Quite possibly.

In the other case Mrs Whitham worked for a VW dealership. On Facebook she commented "I think I work in a nursery and I do not mean working with plants." There was a further comment about "not letting the bastards grind you down." She was disciplined for making a negative comment on Facebook and dismissed.

The decision maker stated that he felt that the comments could put at risk the company's relationship with VW. He concluded that the "bastards" comment was not about work. He considered more serious the fact that she had allegedly breached the terms of her suspension by telling third parties about it. Dismissal was felt to be appropriate despite Mrs Whitham's expressions of contrition.

She appealed and the person who heard her appeal initially seems to have taken the view that dismissal had been unduly harsh. In due course however she rejected the appeal, having amongst other things decided that the "bastards" comment was about work.

Mrs Whitham won her Unfair Dismissal claim at the Employment Tribunal. The Tribunal was very critical of the employer's failure to understand its own powers under its disciplinary procedure and the failure to explain how demotion had gone from being appropriate one day to being inadequate by the following day. In any event dismissal was too harsh. There was strong mitigation, highly unlikely to be any negative repercussions for the company and an immediate apology.

The message for employees of the 2 cases is that you comment on Facebook about your employer at your peril. It must be assumed that any comment you make is to the world at large and will be judged as such. The more steps your employer takes to protect its reputation, and the more closely your comments can be seen as being an attack on that reputation, the more likely your dismissal is to be justified.

The message for employers is to have a clear policy in place and to make sure you understand your own procedures.

Friday, November 11, 2011

The Tevez Saga - an employment law slant

Having already been fined 2 weeks' wages after being found by an internal disciplinary hearing to have refused to warm up when on the bench in Munich, Manchester City footballer Carlos Tevez has now allegedly returned to Argentina despite specifically being refused leave by the Club.

It would appear that the torment of living in a city which (he is alleged on one occasion to have said) "only has two decent restautants" was not assauged by earning millions of pounds a year for doing a job many people would give their eye teeth to have.

In the real world, away from the parallel universe that is the Premiership, an employee who refused a reasonable management instruction (e.g. to get ready to come on and play football when you are in the squad for a match) or had a period of unauthorised absence when they had specifically been told that they could not would almost certainly be able to be fairly dismissed without notice. The case law does however state that an employer must hold a disciplinary hearing on the employee's return before dismissing them - they cannot be treated as having dismissed themselves if they absent themself from work.

Of course Manchester City will not want to terminate Senor Tevez's contract without notice since they will want to cash in on his transfer value. It has been suggested that it would be open to them to retain his registration (preventing him from joining another club) and claim compensation from him for the difference between his current transfer value and the value that City would have been able to realise for him had he not behaved in this way. Certainly if the allegations are true then Tevez would appear to be in potential breach of his contractual obligations to City and if they could show that this had caused them damage then in principle it ought to be possible for compensation to be claimed.

On the other hand it is also suggested that if he is left to "rot in the reserves" or "train with the kids" this could give him the right under FIFA rules to walk away from his contract in the summer on the basis of a "sporting just cause", namely not being given adequate playing time. This might then raise interesting arguments as to whether by his conduct he had brought it on himself (and perhaps whether someone who it is alleged refused to play can complain about being deprived of the right to play!)

This one is likely to run and run...