Friday, October 12, 2012

Jimmy Savile - An Employment Law Perspective

In recent days there has been a deluge of allegations against the late Sir Jimmy Savile to the extent that the Police have stated as a fact that he was a predatory sex offender.

What sort of employment law implications could a case of this type raise?

Behaviour of the type alleged would amount to unwanted conduct related to the protected characteristic of sex and would have the purpose or effect of violating the dignity of the victim and/or creating an intimidating, hostile, degrading, humiliating of offensive environment for him or her.

As such it would potentially amount to unlawful sexual harassment for the purposes of the Equality Act 2010. If the victim was a fellow employee of the perpetrator (or fell within the other categories of worker who are protected) he or she could bring a claim for damages in the Employment Tribunal. A member of the public (e.g. a guest on a TV programme) could not bring a Tribunal claim but might be able to bring a civil claim for, for example, assault and/or press criminal charges.

An employer is liable for the acts of its staff done "in the course of their employment." This is given a wide meaning in this context so the fact that it is, of course, not part of the employee's job to abuse people would not in itself mean that the employer escaped liability.

The employer has a statutory defence if it can show that it took all reasonable steps to prevent the discrimination but this is a high hurdle to clear and if the tendencies of the individual were an open secret within the organisation in question then the employer would be likely to have very little chance of success with this defence.

The individual can also be sued in person in the Employment Tribunal on the basis that their actions amount to knowingly aiding the employer to commit an act of discrimination.

If the abuser was not a fellow employee of the victim but a third party (e.g. a guest on a TV show or a volunteer at a hospital) then the employer can currently be liable (although the Government is proposing to abolish this provision) if it takes such steps as are reasonably practicable to prevent the third party from harassing the employee. This liability only arises when the harassment has taken place on at least two previous occasions, the employer is aware that it has taken place and then fails to take reasonable steps to prevent it happening again.

There is also specific provision in the Equality Act for a claim for damages by an employee who claims to have been less favourably treated because they have rejected or submitted to inappropriate behaviour related to sex.

If the allegations were as old as the ones in the Savile case then the Claimant would be likely to have a serious time limit problem. Discrimination claims usually have to be brought within 3 months of the act complained about or the end of a continuing act of discrimination (which would apply where there was an ongoing campaign of harassment.)  The Employment Tribunal does have power to extend time where it is just and equitable to so but in circumstances where the alleged perpetrator was dead this would strongly suggest the employer is likely to be severely prejudiced if the time limits were waived. As such historic claims are very unlikely to be allowed to proceed. Different time limits and considerations may apply in the civil courts to a claim for damages by that route.

Given that an employer can be liable for unlimited damages in a discrimination case, which could include very high (up to £30,000 in extreme cases) for hurt feelings, any allegations of this type need to be taken seriously, employees need to know that this sort of behaviour is not acceptable and victims need to know that they can be confident that they can disclose it to their employer.

Friday, September 14, 2012

Employment Law Reforms - A Solution in Search of a Problem?

The Department for Business Innovation and Skills has published, to much fanfare in the press and media, a consultation on changes to the law around the ending of the employment relationship.

When one actually gets down to reading the consultation however there is very little in it (if anything) which is really new or which is likely to make much difference in practice.

The Government's approach appears to be based upon a belief that employers are worried about taking staff on because of concern about their ability to terminate the employment if things do not work out. Other than anecdotal evidence there seems to be little basis for this belief and the end of the relationship is rather unlikely to be at the forefront of an employer's mind when recruiting (funding presumably being the major hindrance to expansion.)

Furthermore the suggestion appears to be that change is needed if this is employers' perception, whether or not it is based in fact. Away from the realms of urban myth, the law of Unfair Dismissal is actually quite favourable to employers and gives them a considerable degree of latitude in how they act. The qualifying period for a Claim is now 2 years in most cases and one would have thought that this would give an employer ample time to decide whether someone is up to the task before they acquire the right not to be dismissed without good reason.

The consultation confirms the Government's existing plan to make conversations about settlement inadmissible as evidence in Unfair Dismissal cases in certain circumstances. Bearing in mind that if there is already some underlying dispute between the employer and the employee such conversations would already be inadmissible in evidence under ordinary principles about "without prejudice" discussions it is unclear how this will take us any further forward. And it won't apply to, for example, discrimination claims anyway - so unless the employer is confident the only possible allegation would be of Unfair Dismissal they will not feel any more comfortable having this kind of conversation than they do now.

As an employment lawyer in practice I do not recognise a world where employers are reluctant to speak to employees "without prejudice."

It is proposed to simply compromise agreements although the requirement will still be for independent legal advice and although a template agreement and letters are suggested these are not going to be compulsory and as they will still have to be tailored to the individual cases it is unclear how this will be any different from the practice now.

The idea is to call them "Settlement Agreements" rather than "Compromise Agreements" on the basis that the use of the word "compromise" may be putting people off from using them because they do not want to be seen to be giving in! This seems highly unlikely and indeed in practice until the day when they take one to their Solicitor most employees have no idea what a "Compromise Agreement" actually is.  

Opinions are sought on whether to set out guideline tarrifs although cases are so variable it is hard to see this working and the fear that this will lead to the figures being used as a starting point from which to haggle upwards does seem to have some mileage to it.

The final consultation is on reducing the cap to the Compensatory Award from its current level of £72,300.00 , possibly to 12 months' salary. Since very few people get anywhere near either the cap or 12 months' salary this all seems rather academic and it is a power which could be exercised under the existing legislation anyway. The suggestion is that employers would be less worried about Tribunal claims if the cap were lower and that employees would be more realistic if there was a lower cap. Given that there is no cap on discrimination and whistleblowing claims, all a lower cap would be likely to achieve would be to lead to more of those claims, which are more difficult and costly for employers. There is also potential for injustice to high earners or to those whose careers are ended by their unfair dismissal. In no other area of law is an arbitrary cap applied to damages and it is unclear why it is necessary in unfair dismissal either.  

Monday, September 10, 2012

You Can't Say That In Court! - Without Prejudice Negotiations

The Employment Appeal Tribunal has handed down a Judgment reversing an Employment Tribunal's decision to reduce a Claimant's compensation on the basis that he might have entered into a Compromise Agreement.

Mr Gallop worked as a Training Officer for Newport City Council. He was dismissed and brought a Claim for Unfair Dismissal and Disability Discrimination.

The Tribunal found that he had been unfairly dismissed.

During the course of the hearing on liability there had been some mention by one of the Council's witnesses of the fact that they had been approached by Mr Gallop's Union representative about a possible settlement agreement.

At the subsequent hearing to decide remedy one of the lay members of the Employment Tribunal had picked up on this and had asked Mr Gallop about it. The Claimant had confirmed that he had been happy with the figure offered but his legal adviser had not been.

The Tribunal went on to decide that there was a 50% chance that if he had not been dismissed he would have entered into a Compromise Agreement on the terms mentioned. They therefore reduced his loss of earnings, pension loss and notice pay awards by 50% and awarded him 50% of the proposed lump sum instead.

Mr Gallop appealed as this significantly reduced the amount he received in compensation.

The EAT was very critical of the Tribunal for receiving the evidence about the proposed compromise terms. These were without prejudice discussions and without an unambiguous decision by both parties to waive the confidentiality in them they quite simply should not have been mentioned before the Tribunal at all. The Employment Judge had not informed Mr Gallop (who was not at that stage legally represented) that he would potentially be waiving privelige if he discussed the offer and he should have cut off the lay member's line of questioning as soon as it began.

As such the 50% reduction in the loss of earnings, pension loss and notice pay awards was reduced. The 50% award of a lump sum for the loss of chance of entering into the Compromise Agreement therefore fell by the wayside.

That wasn't all. The Respondent had cross appealed saying that the figures in effect including the notice pay twice. The EAT agreed. The Claimant's losses had been calculated from the date of his dismissal, rather than the end of his notice period, and so by awarding him his notice on top he was getting those 11 weeks' pay twice. The necessary reduction was made.

Overall the Claimant's award nearly doubled from about £33,000 to about £60,000.

Without prejudice discussions are an essential part of litigation. They enable parties to try and negotiate settlement without fear of the contents being held against them if the talks break down. As there had never been a binding settlement here (if there had been then the contents of the dicussions would have been admissible but in order to have been binding there would have needed to have been a written Compromise Agreement) the details of the negotiations were irrelevant.   

It is somewhat ironic that here it was in the Respondent's interests for the negotiations to be referred to in evidence given that the Government has expressed concern about employers' alleged inability or reluctance to speak freely to underperforming employees because of the fear of claims and the subsequent proposal to introduce legislation which purports to prevent this from happening (although whether this is necessary or will be effective is a matter for another day!)
  

Tuesday, September 04, 2012

Constructive Dismissal - the Reason Why

The Employment Appeal Tribunal (EAT) has handed down a Judgment which confirms that in a constructive dismissal case the employer's fundamental breach of contract does not have to be the "principal reason" for the dismissal.

To succeed with a claim for constructive dismissal an employee has to show that their employer is in "fundamental breach" of the contract of employment. This means that an important term of the contract, either written or unwritten, has been broken and/or the contract has been broken in a serious way.

Mrs Logan worked for a vets. She raised a grievance alleging bullying and also that there was a failure to pay her sick pay in accordance with the terms of her contract. She subsequently resigned and brought a claim for constructive unfair dismissal.

The Employment Tribunal  found that there was no bullying and that this was not therefore a fundamental breach. However the employer had not paid her the correct sick pay and this was a fundamental breach.

They went on to find that the "principal reason" for her resignation was the alleged bullying rather than the sick pay issue and as they had found the bullying had not happened they dismissed the claim.

Mrs Logan appealed to the EAT. They agreed with her that the Tribunal had applied the wrong test. There was clear authority for the proposition that if the breach had some causal connection with the decision to resign it did not need to be the only or principal reason. In this case they were satisfied on the basis of the findings by the Employment Tribunal that the sick pay issue had been one of the contributing factors to Mrs Logan's decision to resign. As such she had been constructively dismissed and it had been conceded that if she had been dismissed it was unfair. The case was referred back to the Employment Tribunal for a decision on remedy, where the employer will still be entitled to argue that the Claimant would have resigned anyway even if there had not been a sick pay issue and that her damages should be reduced accordingly.

Employers often argue before Tribunals that the fact that someone has resigned because they have got another job means that they cannot claim constructive dismissal. As this case illustrates, that is an incorrect statement of the law. As long as the employer's breach was part of the reason for the decision to resign, the mere fact that there is another job lined up does not disqualify the claim.  

Friday, June 01, 2012

Paul Lambert to Villa - an Employment Law Perspective

Norwich City manager Paul Lambert looks set to be the replacement for the ill-fated Alex McLeish at Aston Villa.

"The Canaries" issued a statement yesterday saying that Lambert had tendered his resignation but that this had not been accepted whilst negotiations were ongoing with another club. In reality the remainder of the statement appeared to accept that Lambert was likely to be on his way, and the refusal of his resignation is clearly a negotiating stance with a view to maximising the compensation payment they receive from the Pride of the Midlands.

There have been unconfirmed press reports that Lambert has a clause in his contract at Norwich permitting him to speak to Villa and that his resignation had been tendered after a Norwich board member had refused to allow him to do so.

If these reports are correct then Lambert may be able to argue that this was a repudiatory breach of contract by his employer and that it therefore amounted to constructive dismissal entitling him to resign with immediate effect. If so, then subject to any applicable FA rules, he would be a free agent and Villa would not have to pay Norwich for his services.

With regards to "accepting" a resignation, if the appropriate contractual notice required of the employee is given then the employer does not have a choice but to "accept" the resignation. If notice is not given then it is technically a breach of contract by the employee, which the employer has the choice not to accept. In other words the employer can be held to his contract. That being said, the Courts will not grant an employer an injunction compelling someone to work for them - the most that they would get would be damages and/or an injunction restraining the employee from working elsewhere during his notice period. Injunctions are a discretionary remedy and a Court is likely to take the view that damages would be adequate compensation.

When it comes down to it, the reality is that Villa will ultimately agree compensation with Norwich and get their man.

Who will then lead them to glory in the years to come.
 

Wednesday, May 30, 2012

What You Don't Know Might Hurt You

The Court of Appeal has held that a County Court Judge was wrong to find that an employer was entitled to withhold a payment in lieu of notice from an employee who it discovered after his dismissal had been guilty of a financial irregularity.

Mr Cavenagh was made redundant by William Evans Limited. His employment was terminated with immediate effect on the basis that he would receive a payment in lieu of his contractual notice entitlement.

His contract entitled his employer to terminate his employment without notice by paying him in lieu.

After he had left but before the payment in lieu of notice was made William Evans discovered that he had transferred £10,000 of their money into his pension pot without authority.

They withheld his PILON (£65,000) on the basis that his actions were gross misconduct and had they known about them before his dismissal they would have been entitled to dismiss him without notice and avoid having to make him the payment.

He sued and they counterclaimed for the return of the £10,000.

At Southampton County Court the company won. The Judge found that the company could rely on the famous old case of Boston Deep Sea Fishing which said that in a claim for wrongful dismissal case an employer was entitled to justify the dismissal based on information which they discovered after the date of dismissal.

The Court of Appeal disagreed. Where there is an express clause providing for payment in lieu of notice the sum becomes payable as a debt immediately upon dismissal. There was therefore no scope for the application of the Boston Deep Sea Fishing principle. As such Mr Cavenagh was entitled to his money, less the £10,000 which had gone into his pension fund without authority.

The case leads to what some might consider to be the perverse result that the company would have been better off not having a PILON clause and simply wrongly dismissing Mr Cavenagh without notice. He would then not have been entitled to the money as a debt and would have been unable to prove loss because he would have fallen foul of Boston Deep Sea Fishing 

Whilst there are advantages of a PILON clause in terms of being able to end someone's employment straight away (although if the concern is to get a disgruntled employee out of the business this can potentially be dealt with through a garden leave clause) the other advantage of not having one is that the employee has to mitigate his loss rather by trying to get another job and reduce the amount he is entitled to, as opposed to being immediately entitled to full payment as a debt.

Any business contemplating "pulling the trigger" should of course take full advice as to the pros and cons of any particular course of action.
  

Monday, May 28, 2012

Double Jeopardy in Unfair Dismissal Case may not be Unfair

The Employment Appeal Tribunal has held that an Employment Tribunal was entitled to find that 2 Social Workers dismissed in connection with the "Baby P" case were fairly dismissed.

Mrs Christou and Ms Ward worked for Haringey Social Services. Following the murder of "Baby P" they were disciplined over their failings in respect of his protection. This was under a "Simplified Disciplinary Procedure" which did not permit the employer to dismiss them and provided no right of appeal.

Following the controversial (and, it was ultimately determined, unlawful) dismissal of Sharon Shoosmith, the Director of Social Services, Ms Shoosmith's replacement reopened the case as it was considered that the disciplinary sanctions had not been adequate.

Both Claimants were ultimately dismissed for gross misconduct. This was despite the fact that no new facts or information had come to light since the original disciplinary proceedings.

The Employment Tribunal rejected their unfair dismissal claims, finding (amongst other things - the Claimants raised various other arguments as to why their dismissals were unfair) that the Council acted reasonably in reopening the cases.

The EAT agreed. They held that the legal principles of res judicata and issue estoppel, which mean that the same case cannot be litigated twice, does not apply to internal disciplinary proceedings in the same way that it would do to a case in Court or before a professional body. The issue was therefore simply whether a reasonable employer in the circumstances of this particular case could have re-opened the matter. The Employment Tribunal had been entitled to find that given the public protection angle and the seriousness of the allegations a reasonable employer could do so.

This should not be taken as giving employers carte blanche to change their minds. It is expressly stated that the circumstances where this will be reasonable will be "extremely rare." The best advice is always to carry out a full investigation and make an appropriate decision at the first attempt. 

Thursday, May 03, 2012

Fiorentina Sack Coach For Hitting Player!

It has today been reported that Fiorentina coach Delio Rossi has been sacked by the Italian Serie A Club after he physically attacked one of his own players.

Adem Ljajic had apparently reacted sarcastically to being substituted prompting his Manager to wade into him.

Fiorentina acted swiftly in dispensing with the services of Signor Rossi and said that they would take suitable action against Ljajic.

In England and Wales, conduct is of course one of the potentially fair reasons for which an employer can dismiss an employee. Using violence towards a fellow employee would usually justify dismissal without notice for gross misconduct.

However it would be unwise, and could lead to claims for Unfair Dismissal, if the situation is not handled properly. It is never advisable to dismiss someone on the spot. The employee (and if there is any doubt as to whether it was an assault or a fight both/all employees) should generally be suspended and a full investigation undertaken.

Once the facts are clearer any employees at fault should be asked to attend a disciplinary hearing and shown the evidence against them before a decision is made.

Even where the facts seem obvious any mitigation such as provocation, external circumstances like illness which might have lead to an over-reaction and a previous clean disciplinary record would have to be considered. Consistency of treatment is also important - if 2 people are engaged in a fight then it is usually going to be unfair if one is dismissed and the other is not.

Employment Tribunals take a particularly dim view of violence or fighting in circumstances where this creates a health and safety risk (e.g. in the presence of heavy machinery) or where it is an attack by a subordinate on a manager.

Incidentally gross insubordination might also be grounds for dismissal for gross misconduct although whether Ljajic's sarcastic clapping would be regarded by an Employment Tribunal in this country as serious enough to make dismissal "within the range of reasonable responses" for a first offence (if this is indeed what it was) is questionable.


Thursday, April 26, 2012

Age Discrimination Cases Go Right To The Top

The Supreme Court (the one in London that replaced the House of Lords, not the one in Washington DC) has handed down 2 important Judgments on Age Discrimination.

As this is the highest Court in the land these are binding on Employment Tribunals and everything else below the Supreme Court.

In Seldon the Claimant was an equity partner in a firm of Solicitors. The Partnership Deed provided for  retirement by the December after a partner's 65th Birthday. When Mr Seldon reached 65 he asked the other partners to agree to him continuing to work beyond the retirement date specified. They did not agree to this and he subsequently brought proceedings alleging that his compulsory retirement was unlawful age discrimination.

The Employment Tribunal found that the retirement age was a proportionate means of meeting 3 legitimate aims and was therefore justified and lawful. The three aims were giving associates an opportunity of partnership within a reasonable time (which assisted in retention), facilitating workforce planning by knowing when vacancies could be expected and (most controversially of the 3) limiting the need to expel underperforming partners (the implication being that performance would be likely to deteriorate with age.)

After appeals to the Employment Appeal Tribunal and the Court of Appeal the matter reached the Supreme Court which had to decide whether the Tribunal had applied the correct test of what was a legitimate aim and also whether the treatment had to be justified in relation to Mr Seldon as an individual or just in respect of the firm in general.

The Supreme Court said that the European jurisprudence (some of which came after the original Tribunal decision) showed that direct discrimination can only be justified by reference to legitimate aims which are of a public interest nature as opposed to purely individual business reasons. Broadly those which have been accepted tend to fall into the categories of "inter-generational fairness"   and "preserving the dignity of older workers." The 3 aims which had been identified by the Tribunal were apt to fall into those categories.

In relation to the second question, whilst the regulation suggested that the focus was on Mr Seldon,  by definition if it is justified to have a general rule then it will usually be justified to apply it to the individual.

The case was sent back to the Tribunal to determine if the retirement age was a proportionate means of achieving the legitimate aims that had been identified by the partnership. Since the means have to be both appropriate and necessary it may well be difficult for an employer to justify them and it remains to be seen what the ultimate outcome of the case will be.

In Homer the employer introduced a requirement that to obtain promotion to certain higher grades in a new structure the employee had to have a law degree. Mr Homer alleged that this was indirectly discriminatory against people who were near to retirement age, like him, as they did not have the necessary amount of time left in their career to get the degree whereas someone younger than him would be able to get the degree and benefit from the chance of promotion.

The Employment Tribunal agreed that this was indirect discrimination but this was overturned on appeal. Both sides disagreed with parts of the EAT decision and both of their appeals were dismissed by the Court of Appeal, so again the case ended up at the top of the tree.

Mr Homer's appeal succeeded and the case was sent back to the Tribunal to decide if his treatment was justified (which was the part of the EAT decision the employer did not like.)

The argument the EAT and the Court of Appeal had accepted was that Mr Homer was not disadvantaged by his age but by the fact that he was near the end of his employment, which could apply to anyone who was leaving shortly.

The Supreme Court said this was wrong. The disadvantage was due to the fact that he was near retirement, which was directly related to his age. There are material differences between retiring and leaving a job for another reason and it was clear that people of Mr Homer's age were disadvantaged by the rule compared with people of other age groups.

In relation to justification, the Supreme Court noted that it was the rule which had to be justified as a proportionate means of meeting a legitimate aim - the employer did not have to justify the effect it had on Mr Homer. He was not dismissed or downgraded because he did not have a degree - he just could not potentially get some additional benefits. The Tribunal will have to decide whether the requirement was appropriate and necessary.

It was also pointed out that making a special rule for Mr Homer might unlawfully discriminate against younger employees if an exception was made for him as an individual.


Friday, April 13, 2012

Harassment - Context Is Everything

The Employment Appeal Tribunal (EAT) has held that an Employment Tribunal was right to reject a Claim for harassment amounting to Sex Discrimination where an employer accused an employee of lying about her pregnancy and miscarriage.

Mrs Warby worked for Wunda Group plc.

She became involved in a disagreement with her boss over her pay entitlements.

Things became acrimonious with both sides coming to the conclusion that the other was lying. A heated meeting took place on 26th January. There was then a follow up meeting on 25th March which was to deal with Mrs Warby's grievance about what had happened on 26th January.

During the course of this second meeting Mrs Warby accused the Company of change her wages because she was pregnant. It is worth noting that the Tribunal ultimately found that the Company were in the right about what had originally been agreed about her pay.

Mr Pugh from the Company responded to her accusation by denying it but then going on to accuse her of having lied about having had a miscarriage. This accusation appears to have been without foundation and based on a misinterpretation of (or possibly a lack of clarity in) a timeline on Facebook.

Understandably Mrs Warby found his comment upsetting and inappropriate. She brought a Tribunal Claim alleging that it amounted to unlawful sexual harassment. This arises where someone engages in unwanted conduct that is related to the sex of the Claimant or another person and has the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading humiliating or offensive environment for her.

It was accepted that the conduct was unwanted and that it had the relevant effect.

The question was therefore whether the comment was made on the grounds of her pregnancy and was therefore sex related.

The Tribunal concluded that it was not. The context was that Mr Pugh was accusing her of being a liar and was pointing to another occasion when he said she had lied. Whilst this might be unreasonable it was not harassment on grounds of her pregnancy. The Claim therefore failed and Mrs Warby appealed to the EAT.

She argued that the words used were inherently related to her pregnancy and therefore to a female only condition and as such were by definition related to her sex.

The EAT disagreed. Words had to be looked at in the context in which they were used. The hostility in the comments was not directed towards the fact that the Claimant had been pregnant. The Tribunal had to determine the reason for the Claimant's treatment. It had decided that it was because Mr Pugh thought that she was a liar. It had been entitled to come to that conclusion. To conclude that the words were by definition discriminatory would have made any raising of miscarriage or pregnancy in a fraught situation would potentially be unlawful.

This is a decision on its facts and the context in which the comments was made was clearly very important. Employers should not regard it as giving the green light to the making of comments which could be interpreted as relating to an employee's sex or other "protected characteristic."

Thursday, April 05, 2012

Threatening the Opposition - the Way to be Struck Out!

The Employment Appeal Tribunal has confirmed that an Employment Judge acted correctly in striking out a race and disability discrimination claim after the Claimant sent threatening emails to one of the Respondent's witnesses.

Ms Obasa worked for a company who deployed her with Buckinghamshire County Council. After 3 weeks a Ms Blake from the Council decided she should cease to work there.

An Employment Tribunal claim for discrimination ensued.

Whilst this was ongoing Ms Obasa sent Ms Blake a series of emails, which included the following phrases "There is nowhere you can hid" (sic), "...tell the truth before blood is shed", "Look at your love ones (sic) and know what you have done to me" and "There will be no hiding place for you as long as I live, no matter how many years it take me." (sic)

The Council asked the Claimant not to contact anyone except their Head of Legal but this request was ignored.

Ms Blake interpreted the emails as threats and was very distressed by them. She considered that they were an attempt to get her to change her evidence in the proceedings.

As a result the Council applied to strike out the Claims on the basis that they made a fair trial impossible.

At the Hearing before the Employment Judge the Claimant was unrepentant and did not appear to dispute that the emails were threatening but in effect stated that her behaviour was justified on the basis of the way the Council had treated her.

The Employment Judge also noted that during the course of the strike out hearing the Claimant had been to face Ms Blake and direct most of her comments towards her rather than the Tribunal in a manner which was very intimidating.

She concluded that Ms Obasa's behaviour was intended to intimidate Ms Blake into changing her evidence and that this made a fair trial impossible. She considered whether there were any steps short of striking the case out which would address this and concluded that there were none. She therefore struck out the Claims.

As that brought the case to an end it is perhaps not suprising that Ms Obasa appealed to the EAT.

She alleged that the Tribunal had erred by proceeding on the basis that there was an agreement to deal with the strike out application without hearing live evidence but by reading the witness statements when there was no such agreement. The EAT rejected this ground of appeal. They found that Ms Obasa had been so worked up at the original hearing that she was wrongly recollecting what had gone on. There had been such an agreement and the procedure adopted by the Employment Judge had been correct.

More substantially she alleged that the Employment Judge had failed to apply the correct legal principles and should have done something less drastic than strike the case out, such as providing Ms Blake with something akin to "witness protection" or requiring Ms Obasa's questions of Ms Blake to be put in writing for prior approval by the Judge.

The EAT dismissed this ground of appeal. They reminded themselves that the Employment Judge had quite correctly taken into account that striking out a case without a hearing on the merits is a very drastic step which should only be taken where lesser alternatives are inappropriate. They agreed that this was a case where only strike out was appropriate. In the absence of any recognition by the Claimant that her behaviour was wrong it was impossible to have a fair trial as Ms Blake would always be concerned that she (and her family) might be at risk if Ms Obasa did not like her evidence. It was not just that Ms Blake would feel uncomfortable in the witness box - she would feel obliged not to give evidence that was adverse to Ms Obasa.

This does not mean that in any case where something is said which could be interpreted as a threat the case will be struck out. The question is whether the situation is so serious that a fair trial is no longer possible. If the person making the threats is the Respondent, excluding them from giving evidence and putting the other side to proof of their case may be fairer than striking the defence out all together. Similarly if the person making the threats acknowledges that they were wrong then something less than strike out may be sufficient.

Wednesday, April 04, 2012

Tribunal Time Limits - Don't Rely On What Your Employer Says!

The Employment Appeal Tribunal (EAT) has ruled that an Employment Tribunal was correct to decide that an Unfair Dismissal claim was presented too late where the employer had given the employee a later date than the date of her resignation as her termination date.

Unfair Dismissal claims have to be lodged with the Employment Tribunal within 3 months of the "Effective Date of Termination", which is the date the employment ends as defined by the Employment Rights Act 1996. Confusingly this may or may not be the same date as the date on which the employment would be deemed to end as a matter of contract law.

Mrs Horwood worked for Lincolnshire County Council. She was disciplined and as she was not happy with the outcome she resigned and claimed constructive Unfair Dismissal. Her resignation letter, which stated she was resigning without notice, was posted to the Council on 28th January and received by them on 29th January.

The Council wrote to Mrs Horwood accepting her resignation and stating that it would take effect from the date of their letter, which was 2nd February. She was paid up until 2nd February. She also received a letter from the Pensions Section referring to her leaving her employment on 2nd February.

The Claimant's ET1 Claim Form was posted to the Tribunal on 28th April and arrived on 29th April. The Claimant stated on it that her employment ended on 2nd February.

The Respondent alleged that the Effective Date of Termination was 29th January.

If the Claimant was right, the Claim was in time.

If the Respondent was right, the Claim was 1 day too late as it would have needed to be with the Tribunal by 28th April (to calculate whether the Claim is lodged "within" 3 months you go forward by 3 months and then back a day.)

The Employment Tribunal accepted the Respondent's argument. It said that there had been confusion between the Claimant and her representative but that this was a matter between the two of them. The resignation was effective when it was received on 29th January and nothing that happened after this changed that.

The Tribunal went on to find that there was no basis for finding that it was not "reasonably practicable" to present the Claim on time and that there was therefore no jurisdiction to extend time.

Mrs Horwood appealed to the EAT.

She argued that the Effective Date of Termination was 2nd February because that was what the Council's letter said, or 1st February on the basis that this was the earliest the letter was read. There is case law which says a dismissal by an employer is only effective when the employee has received and read (or at least had a reasonable opportunity to have read) the dismissal letter.

The EAT rejected these arguments. The requirement was for the employee to be certain about when the time limit expired. In this case, the Claimant knew she had resigned with immediate effect and that the letter had been received on 29th January. There was no requirement that the letter came to the attention of any particular person before it took effect.

As such the resignation took effect on 29th January. Nothing the Council did after that could alter that fact. It was not for the person at the Council who replied "accepting" the resignation (which is not a term that has any legal meaning) to unilaterally change the date.

Mrs Horwood's fall-back argument that there was an express or implied agreed variation to the date was also rejected.

This was not a case where the parties agreed expressly, as sometimes happens, to an agreed earlier date for the departure of someone who had given notice. There was no evidence whatever of an express agreement - the two parties had simply in effect written letters referring to different dates and there was no suggestion that there had been any discussion with them about the termination date.

There was no basis in law for the suggestion that by silence or implied consent the date could be varied after the event.

As such the Claim was out of time.

Mrs Horwood argued that time should have been extended because the Council's letter had miseld her into thinking that she had until 1st May to present her Claim. This argument was also rejected. The resignation letter had been unambiguous. There was no suggestion that the Claimant had been unable to present her Claim before 28th April. It was simply an erroneous understanding of the situation between her and her adviser. The test for an extension of time is extremely onerous and was not satisfied.

Ironically if the ET1 had been faxed or lodged online on 28th April rather than being posted on that date it would have been in time and there would have been no problem.

Some will feel that this decision was harsh but in terms of the legal principles that were applied it cannot, with respect to the EAT, be faulted. The lessons for employees- don't leave it until the last minute to lodge your Tribunal Claim and always calculate the time limits for doing so on the most pessimistic basis. The lesson for employers - always check the dates carefully if an ET1 is received to make sure that you are not making an incorrect assumption that the Claim is in time.

Wednesday, March 14, 2012

Marital Status Discrimination - Because of Marriage Not Love!

The Employment Appeal Tribunal has handed down a Judgment which calls into question some of the reasoning in a recent case which said that discrimination on grounds of marital status could be unlawful if the reason was that the person was married to a particular individual.

Prior to the case of Dunn it was unclear whether the Claimant had to show that the employer discriminated against the employee because they were married full stop or only had to show that marriage to a specific person was a problem when marriage to another would not have been. Dunn said it was the latter.

However the EAT has now heard the case of Mrs Hawkins.

Her husband was the Chief Executive of the First Respondent company. In 2009 Mrs Hawkins became an employee and in 2010 Mr and Mrs Hawkin's daughter also took up a role with the company.

In late 2009 the First Respondent's Chairman had instructed Mr Hawkins not to employ any family members in the business, to avoid allegations of nepotism and the risk of conflicts of interest (or so it claimed - this was an issue in dispute in the case.)

Mother and daughter were dismissed on the basis that the First Respondent said that they had been employed in breach of this instruction.

Mrs Hawkins claimed that this was unlawful discrimination against her on the grounds of her marital status. The First Respondent applied to the Employment Tribunal to have her Claim struck out as having no reasonable prospect of success and the Tribunal agreed and struck out the Claim.

Mrs Hawkins appealed to the EAT. By the time the EAT gave its Judgment Dunn had been decided (which was not the case when the Tribunal had made its original decision or when the EAT had heard oral submissiosn on the appeal.

The EAT carefully considered the case law including Dunn and rejected the appeal. It found that to the extent that Dunn suggested that discrimination because of marriage to a particular person was always unlawful this was not correct.

If someone is treated less favourably because they are married to a particular person in circumstances where if they had another form of close personal relationship (e.g living together, father and daughter) they would not have been then their marital status is the reason for the treatment and that is unlawful.

If the treatment would have been the same, as would have been the case here (as evidenced by the dismissal of the daughter) then the marital status was not the reason for the discrimination and it is not unlawful.

As such the Tribunal had been right to strike out the case.

Marital status discrimination is rarely alleged. The legislation dates back to a time when many employers had a policy of dismissing female employees as a matter of course when they married.

The decision in this case does not mean that someone can always be dismissed with impunity because they are married to a particular person. If Mrs Hawkins could have pointed to a male comparator who had been treated differently then she may have had a claim for sex discrimination. If she had the necessary 12 months' service she might have been able to claim Unfair Dismissal. Most importantly, if 2 cohabitees had worked for the company without difficulty her Claim might well have gone further.

Thursday, March 01, 2012

Notice of Dismissal - Take No Notice

Yet again the Employment Appeal Tribunal finds itself passing Judgment on a case involving Solicitors - and not for the first time Solicitors who appear to have struggled to understand employment law.

Mr Harvey started work for Parker Rhodes Hickmotts on 1st September 2009. To qualify for protection against Unfair Dismissal he had to still be employed by them on 31st August 2010. (This 12 month qualifying period will from 6th April be increased to 2 years for new starters. There are exceptions to the requirement for a qualifying period but none of them applied in this case.)

The Firm concluded that it did not have enough work of the kind Mr Harvey did to justify retaining him. On 28th July 2010 he was given a letter informing him that his employment would terminate on 31st August 2010. He was expressly told by the Managing Partner that they were finishing him then in order to avoid him having any right to claim Unfair Dismissal. (This was perfectly legitimate - he was given the correct amount of notice to which he was entitled under his contract.)

The Managing Partner then began to worry over whether the 12 months was up on 1st September 2010 (as she had evidently wrongly assumed initially) or on 31st August.

To avoid any doubt she gave Mr Harvey a fresh letter terminating his employment with effect from 28th August.

Mr Harvey subsequently brought a claim for Unfair Dismissal. He said that his employer could not unilaterally vary his notice without his agreement and he was therefore dismissed on 31st August, and had the necessary qualifying service to be able to bring a Claim.

The Employment Tribunal agreed.

The Firm appealed to the EAT, who overturned the decision and dismissed the Claim. Mr Harvey was dismissed on 28th August and therefore fell just short of the 12 months.

The Tribunal had overlooked 2 EAT decisions that said that where an employee had been given notice and the employer had then summarily dismissed them the earlier date was their date of termination. The employee in those circumstances might have a claim for wrongful dismissal if they were not given their contractual notice, but that did not apply here and the remedies for wrongful dismissal are generally very limited (i.e. usually just notice pay) anyway.

The principles in those cases applied equally to someone who was given shorter notice the second time round as they did to someone who was given no notice at all.

This all has the effect of meaning an employer can more easily give an employee fresh notice than varied notice!

One other trap for the unwary is that if the employee does not have a contractual notice entitlement in excess of the statutory minimum then if they are dismissed without notice their statutory minimum entitlement is added on to their qualifying service. This means someone in the first year of employment whose contract does not specify any more than 1 week's notice will have to be dismissed before they clock up 51 weeks.

The message is clearly to check time limits carefully and to seek advice if you are not sure, even if you are a Solicitor.

Thursday, February 23, 2012

Never Constructive Dismissal on a Sunday!

The BBC reports that a Christian has lost her claim for Unfair Dismissal after she was required to work on a Sunday.

Miss Mba claimed constructive dismissal after being required to work on Sundays. She was a carer for disabled children and the Tribunal accepted her employer's argument that it had a duty to provide weekend care.

The full facts of the case are not clear from the brief report. Constructive dismissal involves having to show a fundamental breach of contract by the employer. It is not apparent what breach the Claimant was alleging.

Some may seize on this case as evidence that there is a bias in the legal system against practising Christians but the previous case law offers little basis for that complaint and there does not seem anything obviously unfair about the outcome of this case.

Other than for certain workers in the retail sector who were employed before certain specific dates or who give a written notice to their employer to "opt out", there is no legal right to refuse to work on a Sunday for religious reasons.

Imposing a requirement to work on a Sunday could conceivably amount to indirect discrimination against Christians on the basis that the requirement places them at a particular disadvantage compared to those who do not worship on a Sunday (although this is not self-evident - lots of people would prefer not to work Sunday on the basis that it is even in secular circles generally considered a day of rest.)

However, unlike direct discrimination (treating someone less favourably because they are e.g. a Christian), indirect discrimination can be successfully defended if it is "justified" which means it is a proportionate means of meeting a legitimate aim.

Cases on this point have gone in both directions - a care worker who was put on a permanent rota to work Sundays succeeded with her case. A Seventh Day Adventist who did not want to work in a travel agents on a Saturday (her Sabbath) lost because it was considered reasonable to require her to work on the peak day of the week for holiday bookings and that it would be unfair to expect her colleagues to work every Saturday when they equally preferred not to.

Employers seeking to impose a requirement which may impinge on someone's ability to exercise their right to follow their religion should always consider what the reason is for the requirement and whether there are other means of meeting it. If other staff have no problem with working Sundays then requiring a Christian who does not want to may be difficult to justify.

Monday, February 20, 2012

Court of Appeal backs Nurses Dismissed for Restraining Patient

The Court of Appeal has overturned the decision of the EAT and has reinstated the original finding of an Employment Tribunal that 2 Suffolk nurses were unfairly dismissed after they restrained an elderly patient by tying the legs of his mobile chair to a table.


Ms Crawford and Mr Preston had adopted this technique in order to inhibit an 87 year old dementia patient from moving when he was behaving in an extremely agitated manner (including spitting, swearing and throwing things around) to the extent that they were concerned about his own safety.

It was also alleged (but denied) that the patient was additionally tied to the chair with a sheet across his chest.


The decision maker tested Ms Crawford's evidence of what she had done by attempting to recreate it. He was unable to do so and decided that he did not therefore believe her. Ms Crawford and her representative were not present when this test was carried out.


Both nurses were dismissed for gross misconduct and brought Unfair Dismissal claims in the Employment Tribunal.


The Tribunal found the dismissals unfair. Some of the decision maker's factual findings were unsustainable. There were also procedural problems - the first statement taken from the first person to complain was not shown to the decision maker (when this would have potentially made a difference to his findings) and the "test" should not have been done without Ms Crawford or her representative being present. No reasonable employer on the evidence would have found that the patient was tied to the chair with no attempt to release him. No reasonable employer would have found that what had happened was a "physical assualt" justifying the "career changing decision " that dismissing a nurse entails (given the obligation to report the matter to the nurse's professional body - which can then make it impossible to work in the sector again.)


The Employment Appeal Tribunal overturned that finding. It found that the Employment Tribunal had substituted its view for that of the reasonable employer, which is not permissible - the test is whether the actions of the employer came within "the range of reasonable responses."


The Court of Appeal disagreed. It said that the Employment Tribunal had been entitled to conclude as it did. Whilst it disagreed with one of the Tribunal's conclusions, sufficient of the grounds on which the dismissal had been found to be unfair were justified and the original decision was therefore reinstated.


Even if it was wrong on the procedural points the Court of Appeal did not think that a reasonable employer would have dismissed members of staff with 20 years' service for doing what they did. It had not violated the patient's dignity any more than any other method of restraint would have done and was not greatly different to two nurses on a previous shift holding his chair to the table.

In giving the leading Judgment Elias LJ took time to express concern that in situations like this where a complaint was made there was a growing tendency to automatically suspend the employees in question, regardless of the likelihood of the complaint going anywhere. He stressed that suspension should never be a "knee-jerk" reaction and that it could be a breach of the implied duty of trust and confidence towards the employee if it was. Employees who are suspended can find it belittling and he wondered whether the mere fact of suspension might actually predispose the person hearing the disciplinary to presume guilt.


He was particularly concerned that the Police had been called in. Whilst employers in the public sector have to be transparent, they also owe duties to the employees and this should not involve "defensive management responses which focus solely on their own interests." There had never been any suggestion that the nurses were acting in anything other than the best interests of the patient and the Trust should have given more thought to whether there was any realistic basis for thinking that their actions might be criminal.

Elias LJ's footnotes are, with respect, a useful and perhaps overdue corrective to the tendency to treat every departure from textbook practice in the health care sector as serious misconduct justifying draconian measures with drastic consequences.

Thursday, February 16, 2012

Oil Worker in the Libyan Desert is a British Worker - Supreme Court

The Supreme Court has once again been wrestling with the vexed question of who can bring a claim in Great Britain for Unfair Dismissal.


Mr Ravat lives in Preston (England.) He was employed by a (UK) subsidiary of the (American) oil company Haliburton based in Aberdeen ( Scotland.) He was made redundant and claimed Unfair Dismissal.


At the time of his redundancy he was carrying out work in the (Libyan) desert for the benefit of another (German) subsidiary of Haliburton. He "commuted" to and from Libya, spending 28 days on and 28 days off, the latter in Preston (England.)


In 2003 when he was first sent to Libya (having previously worked in turn in England and in Algeria) he had sought confirmation from his employer that he would continue to be covered by UK law and had been assured that he would.


For some obscure reason (!), the Tribunal system found this extremely simple arrangement (!) difficult to categorise in terms of whether an Employment Tribunal in Great Britain (specifically Scotland, where his employer was based) had jurisdiction to hear his Unfair Dismissal claim.


The legislation on Unfair Dismissal used to provide at one time that the right to claim did not apply to an employee who "ordinarily works outside Great Britain." This clause however no longer appears - the Employment Rights Act 1996 is completely silent on the point.


In 2006 the House of Lords considered the position in Lawson v Serco. In effect this decided that someone who worked and was based abroad would not normally be covered by the legislation but there might be exceptional circumstances where the connection with Great Britain was sufficiently clear that there would be jurisdiction to hear the case.


This would include "peripatetic" employees such as an airline pilot who is based at Heathrow but "works" in the skies all over the world. It would also include someone posted abroad for the purposes of a business conducted in Britain (e.g. the Moscow correspondent of a UK daily newspaper) and an employee working in a political or social British enclave abroad (e.g. embassy staff, someone working at an army base on the Rhine.)


Subsequent case law has extended this to cover the situation of employees in an EU school who were employed by the British Government under contracts governed by English law.

The Employment Tribunal decided that there was a sufficiently substantial connection between his employment and Great Britain to make it appropriate to hear the Claim.

The Employment Appeal Tribunal overturned this - he was doing work for a German company in Libya.

This was then overturned in turn by the Extra Division (the Scottish equivalent for this purpose of the Court of Appeal.) And so the case ended up in the Supreme Court for a final decision.

Mr Ravat won. The Supreme Court decided that it was not necessary to shoe-horn the Claimant in to one of the categories in Serco. It simply had to be decided whether the connection with Great Britain was sufficiently strong and substantial that jurisdiction should arise and they felt that here it was. Whilst not conclusive, the facts that the Claimant's employer was based in the UK, that he lived in the UK and that he had been told UK law would apply to him were all factors to be weighed into the equation.

Whilst this outcome seems fair in this particular case, it has to be said (with respect) that the law still does not seem to be at all certain as to in what circumstances jurisdiction will arise and in which it will not. There will no doubt be further litigation and difficult borderline cases in future.

Thursday, January 26, 2012

Redundancy Selection - Cereal Unfairness

The BBC reports that Edinburgh Council has reinstated 3 workers who were allegedly selected for redundancy by drawing lots.

It would appear that the Council wanted to reduce the number of agency workers doing street cleaning work from 13 to 6.

4 were selected using performance criteria but they could not decide who the other 3 should be. The remaining names were therefore put into a cereal bowl and 3 people selected at random.

Those selected understandably said that this was unfair and the contractor has now got to carry out a fresh process to decide which 7 people will lose their jobs.

Whilst at first glance the method of selecting the 3 looks outrageous, especially from a big employer with proper HR resources, that is perhaps being a little unfair on Edinburgh Council.

Firstly, it would appear from the reports that these people are not employees of Edinburgh Council and it is unclear whether they were "employees" of the agency or just "workers." Only employees can complain of unfair dismissal or be made redundant and this may explain the reason why such an apparently rough and ready process was adopted.

Secondly, it is not as if everyone was placed in a hat - it seems that this drastic measure was only resorted to when some sort of matrix process had failed.

If you are an employer making redundancies then an Employment Tribunal will expect you in most cases to adopt an objective selection process. Whilst you do have a broad discretion, as long as you act in a thought-through and reasonable manner, as to who you put in the pool and how you choose amongst them, you would normally be expected to apply a matrix scoring employees against measurable criteria. As far as possible you should avoid relying on the subjective opinion of the people making the decision - and it should usually be "people" rather than "person" as this helps to eliminate bias.

It is highly unlikely that a cereal bowl will be regarded by an Employment Tribunal as a useful management tool in this process.

Wednesday, January 25, 2012

Employers' Liability for Violent Employees

The Court of Appeal has given its decision on 2 cases on the topic of whether an employer is liable for the violent actions of an employee.

Mr Weddall was the Deputy Manager of a Care Home. He called an employee, Mr Marsh, to ask him whether he wanted to come in to do a voluntary additional shift. There was some sort of disagreement about the fact that Mr Marsh appeared to be somewhat the worse for drink. A little later that evening Mr Marsh cycled to the home and seriously assaulted Mr Weddall.

Mr Wallbank was MD of a small manufacturing company. He employed Mr Brown as a powder coater. There had been various issues with Mr Brown's performance. One day, Mr Wallbank told him off for wasting the heat from one of the industrial ovens. Moments later Mr Brown pushed Mr Wallbank in the face with such force that Mr Wallbank was thrown onto a table 12 feet away and suffered a broken back.

Both Mr Weddall and Mr Wallbank brought Claims for personal injury against their employers, alleging that they were vicariously liable for the actions of their respective employees. Both claims failed as in each case the trial judge held that the assailant was not acting in the course of their employment.

The Claimants appealed to the Court of Appeal, which heard the 2 cases together. In the leading Judgment Pill LJ carried out a comprehensive review of the law of vicarious liability in this area. In essence the test was whether the conduct was sufficiently related to the employment to make it fair to impose liability on the employer. There was no obvious reason for applying a different test depending on whether the victim was a colleague or a third party.

He concluded, and the other 2 Judges agreed, that Mr Marsh was acting for his own reasons and that his trip to the home was "separate and distinct from his employment as a Senior Health Assistant." Mr Weddall's employers were therefore not liable and his appeal was rejected.

In the Wallbank case the Court concluded, though not without some hesitation, that the spontaneous and almost instantaneous reaction of Mr Banks was sufficiently closely connected with his employment that his employer should be liable for his actions. It was stressed that this did not mean that every incident of violence by an employee arising from their reaction to an instruction they were given would lead to liability.

Thursday, January 19, 2012

Alternative Employment- Just Say No!

The Employment Appeal Tribunal has found that an Employment Tribunal wrongly rejected a nurse's claim for a Redundancy Payment when she had turned down an alternative role and had been made redundant as a result.

Under the Employment Rights Act 1996, an employee who is under notice of redundancy and refuses an offer of suitable alternative employment, or unreasonably fails to complete the 4-week statutory trial period allowed in that new employment, loses their right to a Statutory Redundancy Payment. For someone with 20 years' service this could be as much as £12,000.00.

Mrs Readman had a long and distinguished career in the NHS. In 1985 she had ceased working in a hospital setting and had worked ever since in the community. In 2007 a redundancy situation arose and she was offered 3 alternative roles.

In November 2008 she began a 4-week trial period in one of the roles but resigned from it and claimed her redundancy payment. This was working in Teignmouth Hospital. She said that since 1985 she had been a community nurse and she had no desire to go back into a hospital.

It is also worth noting that at this time Mrs Readman was actively looking to emigrate to Canada and she has now in fact done so, and works as a nurse in Vancouver.

The Employment Tribunal decided that 2 of the roles, which were at a lower pay band, were not suitable alternatives and the issue was therefore whether the role she had tried out was a suitable alternative and whether she had unreasonably refused it.

They decided that given her wide experience in nursing and that she had worked in a hospital before, the job was a suitable alternative. So far, so good.

They then went on to find that her refusal was unreasonable. She had rejected the job without a full exploration of what duties it might entail and what aspects of her current job might be lost. They took into account that she was looking to emigrate and hoping to take advantage of her Redundancy Payment.

The EAT said that this was an error of law. They reminded themselves that there were 2 questions that the Tribunal had to ask itself:-

a) Judged objectively, was this job suitable for this employee? and
b) Taking into account all of the circumstances did the employee act reasonably in refusing it?

It had to be remembered that a job could be perfectly suitable for an employee without it being unreasonable of them to refuse it. The Tribunal should not substitute its opinion for that of the employee. It is also worth keeping in mind that it is for the employer to prove that the refusal was unreasonable, not for the employee to prove that they were acting reasonably.

Taking into account that notwithstanding the allure of the beautiful city of Vancouver it had never been suggested at the Tribunal that Mrs Readman's stated reason for turning down the role, that she did not want to revert to being a hospital nurse, was genuine the EAT felt able to say that the only conclusion to which the Tribunal could properly have come was that this was not unreasonable of her, and she was entitled to her money.

By my calculations her Redundancy Payment will have been about £9000.00 (or about C$14,000.00)

Friday, January 13, 2012

Government "To Make It Easier To Sack Bad Teachers"

The Government has confirmed that it plans to implement new procedures from September which it says will make it easier to sack underperforming teachers.

At the moment the minimum time it takes to dismiss a teacher who is not performing (in the state sector at least) is 24 weeks and the Government says that the changes will mean that in straightforward cases this could be reduced to as little as 9 weeks.

The NUT is concerned that this could be a "bully's charter" and will rush schools into making quick decisions when there can be all sorts of short-term reasons for poor performance.

Consultation is also taking place on whether schools should have to inform prospective new employers when answering reference requests whether the teacher has been through a capability procedure, to avoid the perceived problem of poor teachers simply being moved on rather than leaving the profession.

The Education Secretary Michael Gove has been at pains to stress that there is no suggestion that there is an epidemic of poor teachers and that the overwhelming majority of members of the profession do a good job.

It will remain to be seen how much difference this will make in practice. Capability (or more precisely lack of it) is one of the potentially fair reasons for which the law allows an employee to be dismissed. However, save in the case of gross negligence (a pilot landing an airliner on a motorway by mistake, for example) it will very rarely be a fair dismissal to sack someone for a "first offence."

An Employment Tribunal will normally expect to see dialogue aimed at achieving an improvement in performance, with the reasons for the problems being identified and then realistic measureable targets being set. In particular this will usually involve an agreed (where possible) timescale for improvement and the employee being given a reasonable time to improve. In view of this it seems highly unlikely that there will be that many cases where a teacher could be fairly dismissed in 9 weeks or a term.

Thursday, January 05, 2012

LinkedIn - Be Careful What You Say

Today's Telegraph reports the case of an HR executive who is claiming Constructive Dismissal after being asked to attend a disciplinary hearing because of the contents of his LinkedIn profile.

John Flexman says he was forced out of his job after being accused of "inappropriate use of social media." His LinkedIn profile included his CV and also stated that he was interested in "career opportunities." Apparently about 70% of LinkedIn profiles include the latter.

We shall have to see what the Employment Tribunal makes of it all. It may transpire that the relevant box had been ticked without the implications being thought through fully - although looking at it from the outside one might think that posting your CV on a profile was an indication that you are at least prepared to look at leaving your current job.

This is yet another example of how social media can blur the line between information that is personal and information that is public and/or belongs to your employer. It follows hot on the heels from a case in the US of an employee who is being sued for keeping the Twitter followers (all 17,000 of them!) that he built up whilst working for his now ex-employers.

The Law Society has issue guidance on the topic and whilst some of this relates to issues which are probably specific to the legal profession e.g. client confidentiality concerns, some of it will be of more general application.

The general lesson for employers is to have a clear written policy of which all employees are made aware (and ideally sign up to accept) and which is consistently enforced. The lesson for employees is that in most cases what you say on social media is not private and can be held against you by your boss.