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.