>> Or for more exclusive employment advice for both staff and bosses, covering a vast array of legal topics, try our Job Clinic pages or our Employment Law sections.

By Peta Fluendy

Sir Fred Goodwin, former chief executive of Royal Bank of Scotland (RBS), was in the news again recently amidst discussions about whether he should be stripped of his knighthood and about how he had managed to have criticism of him removed from a Financial Services Authority report.

He is of course also famous for using a “super injunction” to cover up details of an affair he had with a colleague at the Bank.

Some employers frown upon relationships amongst employees, which is not surprising. It is not uncommon for employers to find themselves facing tribunals when relations between employees turn sour.

RBS found itself in front of a tribunal facing unfair dismissal and sex discrimination charges recently following what had started as a domestic row between two junior employees who lived together.

The two had rowed at their flat after the male customer services employee had returned home very late after a drinking session with his friends.

The row culminated with him pushing the female employee on to the sofa and leaving. He caused a disturbance shouting and kicking the door later on when he tried to get back into his flat. When he returned a second time the police were waiting and he was arrested.

He was charged with assault but found not guilty though he was convicted for breach of the peace. He claimed he had only acted in self-defence as the female employee had slapped and scratched him. He was, however, dismissed by the bank.

He initially won his claim for unfair dismissal and sex discrimination – because he was treated less favourably than his former girlfriend, given that he had accused of her of assault too. It was also ruled unfair to sack him because he had done nothing reprehensible enough to justify this.

The appeal tribunal overturned this. The bank only had to show that its response was a reasonable one in the circumstances. It did not need to prove that the employee’s conduct had been reprehensible.

The bank should have allowed the claimant to see statements against him – but there was no evidence the outcome would have changed had he seen them. The EAT also ruled there was no evidence that the bank’s decision had been based upon sex discrimination either – since it had outlined cogent reasons for the dismissal and allowed the claimant to put his case in his appeal.

Of course it does not even have to be a personal or committed relationship between two employees for the employer to become embroiled in the row.

In another case, where two Hovis Bakery employees accused one another of hitting each other during a night shift, the employer lost an unfair dismissal claim brought by the employee who was eventually sacked.

His dismissal was ruled as unfair because the claimant had not been shown a letter submitted by the union representative, who was supposed to be defending him, which said he had admitted the charges against him. The union had decided to abandon the claimant believing only one of the employees could be saved.

It is, of course, sometimes impossible to avoid serious disputes between staff. Mediation between the two might be an option in some cases.

If it does become necessary to dismiss one or both of the protagonists, then misconduct is certainly a fair reason for dismissal. It is also possible to dismiss fairly on the grounds of a substantial other reason – such as personality clashes.

The important thing is to go about the dismissal carefully and follow the ACAS code of practice on disciplinary and grievance procedures. You can view ACAS’ information here http://www.acas.org.uk/index.aspx?articleid=2174

employmentlawconsultant@gmx.com

>> Or for more exclusive employment advice for both staff and bosses, covering a vast array of legal topics try our Job Clinic pages or our Employment Law sections.

By Peta Fluendy Employment Law Consultant

At the time of writing this, the Supreme Court has just started a hearing which is expected to provide guidance about how and when it might still be permissible for employers to force staff to retire – even though it is supposed to be illegal to do so.

The default retirement age, which allowed companies to pension off staff at 65, was abolished in October last year. It had to go. EC anti age discrimination laws meant its days had been numbered for a long time.  

(Click here to read more about the Default Retirment Age)

It was replaced with a complete muddle.

There was reportedly a surge of forced retirements before last October’s deadline as employers panicked over the idea of being forced to keep staff on perhaps into their nineties and beyond whilst having to explain to younger colleagues why there was no prospect of promotion.

Some believed it was impossible even to ask their staff about retirement plans because they were scared of age discrimination claims.

 These employers need not have worried, however. The DRA may have gone, but the law was far from clear that compulsory retirements had to go with it.

This is because EC legislators have completely fudged what to do about the issue.  EC law says forced retirement of older staff is age discrimination, but adds discrimination can be “objectively and reasonably” justified.

Now of course nobody knows what that means, which is why judges are inventing interpretations.

The case that the Supreme Court is hearing concerns the attempt of a partner at a solicitors’ firm to fight his forced retirement at aged 65. It is hoped that the Court will give clear guidance on exactly how forced retirement can be objectively justified.

The law firm has argued that it needs to preserve its retirement policy to provide promotion prospects for younger solicitors and to avoid the stress of having to performance manage aging partners out of their positions. It has succeeded so far with its arguments, which have been going on for about five years, in various tribunals, and courts.

The European Court of Justice has already accepted similar business efficiency arguments. Last year it ruled that it was perfectly legitimate for an employer to compulsorily retire two state prosecutors in Germany at 65 to make way for younger staff and to prevent the need to performance manage the two prosecutors out of their jobs.

Assuming the Supreme Court here adopts the same position, employers will still have to demonstrate that their retirement policies are an appropriate and necessary way to achieve the aim of providing opportunities to younger staff and a dignified exit for old staff.

The relevant EC directive says discriminatory measures can be adopted if ”they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.”

Words like “appropriate” “necessary” and “reasonable” are used to evaluate whether or not age discriminatory measures can be justified. The terminology shows just how subjective such judgments are –even though objective judgment is supposedly required.

This means that, a bald statement that compulsory retirement is necessary to provide advancement for younger staff, or to avoid performance issues, might not be adequate. It is likely to be necessary to demonstrate that younger staff members really are being held back and that there really is deterioration in performance.

It will also be a good idea to explore other options besides compulsory retirement for employees who are reluctant to leave. Job shares, flexible or part time working are a good way to retain the experience of older staff whilst still providing opportunities for younger ones.

>> Click here for some guidance from Acas about how to approach retirement discussions with employees without blundering into an age discrimination suit.

employmentlawconsultant@gmx.com

>> Or for more exclusive employment advice for both staff and bosses, covering a vast array of legal topics try our Job Clinic pages or our Employment Law sections.

By Peta Fluendy Employment Law Consultant 

December 24^th might have meant Christmas Eve celebrations for most of us. But for agency workers on temporary contracts it was the day the sky fell in, according to some. Alternatively it was a day when nothing much at all happened to them on the employment front, according to others.

The Agency Workers Regulations, which were implemented on October 1^st last year, give agency temps similar pay and work conditions to full members of staff if they work at the same employer for more than 12 weeks.

The first 12 weeks after the implementation of the regulations ended on Christmas Eve – supposedly making that the day for mass sackings of temps by anxious employers of temps.

There was a rush of stories this week to say that worst fears have been realised. The stories were prompted by a claim from the Association of Professional Staffing Companies (Apsco) that 29 per cent of recruitment agencies intended to terminate the short term contracts before their temps clocked up 12 weeks of service with one employer.

(For all our latest news and stories about agency and temporary workers click here)

Apsco only spoke to 42 agencies, however, meaning it has found just 12 agencies which said they would do this. Still nearly a third saying they will end contracts because of the regulations  seems significant.

It is, however, hard to find figures about what proportion of temporary contracts actually last for anywhere near 12 weeks. Many temps are hired to cover short term sickness absence or to provide holiday cover for a week or two. These will be unaffected because they will be long gone before the 12 weeks is up.  

Then there are professional contract workers (such as IT contractors), who often earn more than their permanent staff colleagues and work either on a self – employed basis or as permanent employees for the company which hires them out on a management services contract – these too are unaffected by the regulations.

There is evidence that many employers, including large supermarkets, are asking temping agencies to provide staff on a managed services contract instead of as traditional temps.

This is presumably why the Recruitment and Employment Confederation (REC) says that the impact of the regulations is minimal. Last month it said that 83 per cent of employers are looking to either grow or keep their demand for temps the same in 2012. The figure for employers who said they would decrease their use of temps actually fell by 7 per cent in December compared to November, according to REC.

This would seem to show that few employers are panicking about the regulations. Demand for temps is influenced more by business and the economy than by the regulations.

The Regulations are liable to cause repackaging in how some temps are hired, and managed service contracts, where the temps are permanent employees of and supervised directly by the agency, might become more common. 

There will be meetings this month between the employment minister, unions and representatives of the temping agencies to review the impact of the regulations.

One thing is certain.

Employers cannot afford to ignore the regulations or leave everything to the temping agencies. They could find themselves before an employment tribunal if they get things wrong.

This is not because temps will get all the rights of permanent employees – such as the right to claim unfair dismissal or redundancy when their contract ends, because they will not.  But employers who try to preserve pay discrepancies between long term temps and permanent staff or avoid giving temps holidays could face claims.

There may also be claims about whether managed service contracts are really just a sham to enable employers to avoid the regulations

Employers using long term temps must inform their agencies about pay and conditions of permanent staff who work in comparable jobs to the temps and ensure that temps get full access to facilities such as staff canteens and employment vacancy publicity. Any temps who do stay on after 12 weeks of service will then qualify for equal pay and holidays.

There is a quick guide to the regulations here:

And more details on how they are supposed to work in different scenarios here:

employmentlawconsultant@gmx.com

>> Or for more exclusive employment advice for both staff and bosses, covering a vast array of legal topics try our Job Clinic pages or our Employment Law sections.

By Peta Fluendy Employment Law Consultant 

The new year fireworks are a memory and we are back at work with 2012 to look forward to.

The changes to employment law to be imposed by the government this year, at least the ones we know about, are all designed to make life easier for employers and are being brought in because of employer lobbying. But employers who eagerly await reforms to unfair dismissal and cash charges to bring tribunal claims might end up feeling like they have received socks for Christmas instead of the latest expensive electronic toy they thought they were getting.

The charges to bring tribunal claims may well not be levied if the claimant has limited means and, even if they are levied, they are likely to be accompanied by fines for companies that act unreasonably when disciplining and dismissing staff. There will also be a greater likelihood of costs being awarded against parties, which will cut both ways.

From April employees will have to have worked for a new employer for two years before they qualify to claim unfair dismissal. Many fear this will prompt angry employees to blame their grievances on discrimination instead and quite possibly even those with the required length of service will put in a discrimination claim to help boost their unfair dismissal claim.

Cases where some form of discrimination is alleged in addition to unfair dismissal are already common. In one recent Employment Appeal Tribunal case, a manager of store who had been on prolonged sick leave with depression, won his unfair dismissal case – even though the long list of claims he brought for disability discrimination and victimisation had failed.  The employer was still criticised under the discrimination claims even though it eventually had them dismissed and it seems possible the unfair dismissal claims received a boost from the discrimination proceedings even though the two claims need entirely different ingredients to win.

The maximum pay out for an unfair dismissal will increase in February from £68,400 to £72,300.

Acas has published a gloomy set of predictions of other problems that employers are liable to face this year. Top of the list was continued pressure to cut work forces and pursue mergers and acquisitions because of economic conditions this year. Case law about this is evolving all the time – and it is not making life easier for employers.

There had been confusion for some time about whether Transfer of Undertakings (protection of employment) TUPE regulations apply when a company goes into administration. Tupe protects  the pay and conditions of employees who transfer to a new company after their old employer is bought out. The confusion came about because it is not always clear, when a company goes into administration, whether it will be bought out or whether it will end up in liquidation. There is no TUPE protection for employees if the company goes into liquidation.

The latest case, published just before Christmas, was about whether an assistant solicitor could transfer under TUPE to a new solicitors’ firm, when her previous employer was swallowed up after going into administration. The Court of Appeal decided that TUPE definitely will apply to this case and ones like it in future – ending previous contradictory rulings on the issue.

Acas also believes that there will be more disputes this year about the use of social media at work and at home – though that could probably be said at the start of any year.

Another of its predictions is that companies will have to learn how to manage an aging workforce in 2012.  This will be the first full year without the default retirement age, which allowed employers to pension off staff at 65. The DRA was finally abolished in October last year and its absence will necessitate greater flexibility in managing retirement and flexible working for older staff whilst balancing the requirement to provide career advancement for younger ones.

From October this year large employers will have to automatically enrol their staff into a pension if they are not already in one and do not opt out. It will take until 2017 before small companies are forced to follow suit, however.

employmentlawconsultant@gmx.com

>> Or for more exclusive employment advice for both staff and bosses, covering a vast array of legal topics try our Job Clinic pages or our Employment Law sections.

By Peta Fluendy Employment Law Consultant 

None of the recent initiatives to water down employment law, have done anything to stop equal pay legislation from looking like a potential time bomb for the private sector.

The horror stories about local authorities having to pay out millions of pounds to settle equal pay claims have not gone away. Council employees are still using equal pay legislation to defeat local authorities, who refuse to pay them as much as colleagues in often very different jobs.  (Read more here)

Of course many private sector employees might be afraid of infuriating their bosses by submitting an equal pay claim, in the current economic climate.

But since unfair dismissal claims are to be made harder and tribunal claims costlier, forcing bosses to answer an equal pay claim might soon start to seem an attractive option to disgruntled employees.

As usual the recent case law on equal pay concerns the public sector, but that does not mean that the private sector is immune from such claims.

In fact, there is plenty for private sector companies to worry about.

In one case the City of Edinburgh Council has found itself liable to compensate a group of female administrative and clerical workers who had successfully argued that they should be paid at the same rate as male manual workers employed by the Council. The court ruled that it was immaterial whether the workers worked at the same location. The salient point was that they were all employed under the same terms and conditions. 

Birmingham County Council is faring no better. The Council was in the headlines some years ago when it was forced to pay out to compensate the female cooks, cleaners and care workers because they earned less than grave diggers, gardeners and refuse collectors.

 At the time, only those who were currently employed or who had left recently were eligible to bring a tribunal claim – because of the six month statutory time limit to bring equal pay tribunal claims. In the latest twist, 174 more cooks, cleaners and care workers have been told they are entitled to launch their equal pay claim in the High Court.  

This means female workers who left council employment up to six years ago will now be able to have their claims heard by the Court – because the courts allow people up to six years to file a claim.

The potential danger for private sector companies is obvious.  Some of the older equal pay claims were made under the Equal Pay Act 1970, which has now been replaced by the Equality Act 2010.  But the new act certainly does not make things any easier for employers.

The complexity for all employers is that equal pay rules do not just apply to those doing exactly the same job for an employer. The rules also apply to staff doing completely different jobs,  if it can be shown that the jobs require similar levels of effort, skill and decision making abilities. This is why teaching assistants or clerical workers have successfully forced local authorities to equalise their pay with manual workers, who had traditionally been paid far more.

Private sector employers cannot hide behind gagging clauses in employment contracts banning staff from discussing their pay with each other either – because such clauses were outlawed by the Equality Act 2010.

Both male and female staff can bring equal pay claims too – meaning such claims could become increasingly popular when the new restrictions on unfair dismissal come in.

There are defences to equal pay claims. If an employer can prove there was a material factor justifying pay differentials, such as one employee having more experience than another, then the claim will fail.

In one recent case a woman who worked for the Prison Service in Newport lost her claim for equal pay which she had brought because she was paid less than a man doing exactly the same job in the same place. The employer had a material justification for the pay difference, which was that the man had more previous experience than the complainant. This defence held –  years later even though the complainant had by then built up her own experience because the Employment Appeal Tribunal held that the justification was not time limited.

Employees get six months after leaving their jobs to bring equal pay claims. This is different to most tribunal claims, which have a three month deadline for submission. Both men and women are eligible to bring such claims and all employers – no matter how small – are bound by the rules.

There is help aimed at small companies on how to avoid such claims here. And there is more guidance on the implications of equal pay law here:

employmentlawconsultant@gmx.com

>> Or for more exclusive employment advice for both staff and bosses, covering a vast array of legal topics try our Job Clinic pages or our Employment Law sections.

By Peta Fluendy Employment Law Consultant  

Simplifying employment laws ought to mean an end to long-winded procedures and legal quagmires. But attempts by the coalition government to achieve that might end up falling flat.

Plenty of measures to make life easier for employers are proposed in addition to recently unveiled plans to make unfair dismissal claims harder.

A consultation is planned shortly on whether to allow tiny companies with fewer than 10 staff to fire without going through cumbersome procedures using “compensated no fault dismissals.” This sounds perfect for micro companies that have neither the time nor the expertise to do things properly. 

But it could backfire if it prompts angry employees to hunt around for discrimination claims to get revenge.  They only have to demonstrate that a dismissal might have been for a discriminatory reason – for the employer to face all the hassle of trying to disprove the claim.

Another idea is to force claimants to take their dispute to Acas before they file a tribunal claim. The aim is laudable again – to use mediation to cut the number of tribunal claims. That may not be the result, however.

It should be remembered at this point, that nearly all tribunal claims are already sent to Acas. The conciliatory service is sent a copy of the tribunal claim and a copy of the employer’s response and then simply uses this information to understand the background of the dispute and begin mediation.

All this usually happens long before the tribunal even sets a date for a hearing and there is no particular time pressure for Acas to find a settlement, because the hearing date is always up to a year down the road. The system works quite well. Acas fixed 41 percent of unfair dismissal claims last year – and another 25 percent were withdrawn.

Acas will be under severe time pressure under the new regime. Claimants have a strict three month deadline after their dismissal to submit a tribunal claim. If Acas is to mediate before the claim is submitted, it may have to drop the case as the deadline approaches.

Acas will also either have to work in the dark – because it will not have the tribunal claims and responses to study; or claimants and employers will have to write out all the issues and legal implications twice – once for Acas and once for the tribunal if Acas fails. This is potentially a duplication of effort, which advisers will gleefully charge for. Finally Acas is expected to take until 2014 to reorganise itself to be able to handle the new duties.

Plans suggested recently to introduce protected discussions are also going out to consultation next year. These will allow employers to discuss tricky matters like performance and discipline without the risk of what is said being used as evidence in a future tribunal, in theory.

In practice it is hard to see how this protection can be water tight – because carte blanche to act in a discriminatory way, or in a way that breaches an employment contract is likely to break other laws. Employees are unlikely to lose the right to defend themselves, meaning any employer that believes it can speak and act with total impunity in a protected discussion might find itself in a deep hole.

It will remain necessary to have clear performance targets, a transparent appraisal system and careful discipline and dismissal procedures.

Compromise Agreements (CAs), which are written contracts governing the exchange of cash in return for departing employees agreeing not to make any claims against their former employers, are also earmarked for changes. Again the intentions are sensible: to simplify the agreements to make them easier and cheaper to draw up.

The first move is to re-label them as settlement agreements because apparently people with no intention of backing down are put off by the term “compromise”

CAs currently contain a long tedious list of all the different statutes and regulations that the employee could possibly claim under. The government wants to allow a general statement to cover all the possible claims instead of spelling each out. The government also wants to clear up confusion about whether CAs can even be used to rule out discrimination claims under the Equality Act 2010.

These are all good intentions, but it is hard to imagine a one size fits all settlement agreement working. Lists of acts and regulations are already pretty standardised and can be cut and pasted. But each employer has different requirements – such as secrecy or non competition clauses, which have to be individually thought about. Agreements will still have to be carefully drafted with legal implications explained.

The changes may just reshuffle complexities rather than end them.

employmentlawconsultant@gmx.com

By Peta Fluendy Employment Law Consultant  

Bosses should make themselves and their companies a bit more pleasant apparently.

Responding, no doubt, to hostile reports that some senior executives earn 89 times the average earnings of their staff, John Cridland, director general of the CBI told the CBI’s annual conference recently that companies should not pursue shareholder profit at the expense of everything.

He said “shareholder value is a result not a strategy. Your main constituents are your employees, your customers and your products,” which was a quote from a prominent US business man, Jack Welch.

If employees are to be treated as the main constituents in businesses, then presumably the need for employment law will fade.  The first thing to vanish will be constructive dismissals. These are where an employer behaves so badly that it is found to have fundamentally breached an employee’s contract, meaning it becomes an unfair dismissal when the employee resigns and storms off.

Now of course unfair dismissal, including constructive dismissal, will soon become harder to claim, because of the government’s plan starting from next April to double to two years the length of time someone must work for a new employer before they are eligible to claim. 

So we ought to be able to trust the government to set a fine example on how to be a caring employer and avoid constructive dismissal claims.

It seems, however, that we would be better off trusting it to show us what not to do, if the recent show down between Brodie Clark, the former head of the UK Border Agency and his boss the Home Secretary is anything to go by. Mr Clark resigned in response to disparaging public comments the Home Secretary made about him and to his highly publicised suspension from office before he had been given a chance to explain himself.

It is possible to end up facing a constructive dismissal claim for far more subtle reasons.

In one case recently a managing director won over £65,000 in damages for constructive dismissal following her resignation over a remark about her from her boss, which was forwarded to her by mistake in an email. The email did not say the MD was going to be dismissed and may have simply meant that her management style needed to be addressed.

The Employment Appeal Tribunal upheld the finding of constructive dismissal saying the question was an objective assessment of how a reasonable employee would view the circumstances in which the MD found herself. In other words the intention of the employer and the employer’s attempts to put things right afterwards, are irrelevant. If a “reasonable employee” would view the employer’s action as destroying trust and confidence, then the employer is open to a constructive dismissal claim.

So what on earth is a “reasonable employee?” Some employees are as thick skinned as a rhinoceros and others are delicate. How is the employer to respond?

Certainly not the way an employer did recently when it suspended a manager on full pay without listening to any explanations from him and then completely bungled its letter about why it was doing so.

The employee, who was absolved of wrongdoing, also lived in a flat at his work premises and the employer had reportedly attempted to imprison him by keeping him under “house arrest” during its investigation.

Employers who create a perception of unfairness in their staff may find themselves facing constructive dismissal claims. It is important, therefore, not to rush to judgement and to give employees a chance to express and explain themselves.

It is possible to suspend a member of staff to conduct an investigation – but it should be made clear that the suspension is not itself a punishment. A short suspension can be used  whilst the investigation is conducted and the investigation should be undertaken with an open mind. It is also extremely important to have a clear disciplinary code and to stick to its procedures.

employmentlawconsultant@gmx.com

By Peta Fluendy Employment Law Consultant

Will it soon be possible for employers to get away with saying whatever comes into their head, no matter how offensive, to their staff?

It ought to, according to the government, which is planning to introduce the idea of protected discussions into the workplace.

The deputy prime minister first mentioned plans to introduce protected conversations recently. The idea is that employers can declare a meeting to be a protected conversation and then discuss thorny issues like retirement or capability with impunity. Nothing mentioned in the meeting will be useable in a tribunal case.

The prime minister restated backing for the idea saying there would be consultation soon about the introduction of protected conversations to allow bosses “to have frank conversations” with their staff without fear of being dragged to a tribunal.

This might help some employers a bit, but only in a limited way.  Here is an illustration of why.

In one recent case a large brewery found itself at a tribunal answering age and disability discrimination allegations because a nineteen year old bar manager had told a much older barmaid she was being made redundant because he now had a “young dynamic” team in place.  If he had said this during a protected conversation then the employer might potentially have avoided the tribunal.

However in this particular case the employer would still have been taken to a tribunal and still have lost the case when it got there, because the supervisor did not stop there.

He supported his discriminatory remark with a series of discriminatory actions. There was clearly no redundancy situation, because new bar staff were being hired. This was evidence of discrimination. The manager had also appeared shocked and unsure how to react when the bar maid had told him she preferred to keep busy because she suffered with obsessive compulsive disorder. He also followed up the meeting with her by writing her a letter saying she was being dismissed for the breakdown of their professional working relationship – yet there had been no such  issues raised. This was also seen by the tribunal as evidence of discrimination. The proposed protected conversation rule could never have saved this company.  

The proposed protected conversation rule would also have failed to help a large restaurant chain would, which lost a race discrimination claim recently. There was a conversation between the supervisor and the waitress concerned which would have been ideal to have conducted under the protected conversation rules. The chat was about whether the waitress should have her request to relocate to the York outlet granted – in the light of a request to take time off to study, which the supervisor wrongly believed the waitress was planning.

Once again it was the supervisor’s own actions which would have scuppered any protection had the rule been in place. In this case he told the waitress there was no role for her at either branch – at a time when the York branch was actively recruiting. None of the new recruits were black – making the refusal seem discriminatory to the tribunal. The supervisor was also found by the tribunal to be inaccurate and inconsistent in his claims that the waitress had told him she would require study leave.

If a protected discussions rule is ever introduced employers will do well to treat it very cautiously. When carrying out sensitive discussions it will remain wise not to say anything that will sound awful if a tribunal heard it. Protected discussions can never take away the need for respectful, transparent and fair discussions and carefully followed procedures.

employmentlawconsultant@gmx.com

By Peta Fluendy Employment Law Consultant

Some employees develop a persecution complex even when mildly chivvied and others might be divas.  But new research suggests that the number of tribunal claims could be slashed if managers received better training.

Bullying, shouting, swearing, mismanagement and even physical violence are all pretty common in the work place. Some 47 per cent of the workforce say they have received some form of mistreatment at work, according to a recent report. 

Common forms of mismanagement are giving absurd workloads and impossible deadlines.  It is also not unusual for bosses to ignore certain staff and favour others whilst dishing out menial work below competency levels.

Other bosses love to check up on staff – even when not necessary and some irk staff by failing to follow company procedures.

Verbal abuse and humiliation is widespread too, according to research carried out by the Economic and Social Research Council. The worst abuse was amongst quite high level employees – associate professional level in small to medium companies with up to 250 staff.  

All of this type of behaviour leads to claims.

In one recent case, an employer  was dragged before a tribunal and then took itself to the Employment Appeal Tribunal – only to find itself sent back to a tribunal for a rehearing. The whole process has so far taken two years of management time and legal fees in fighting a race discrimination and victimisation claim.

The facts of the case seem to indicate that careful management is a much more effective way of avoiding disputes than staff and bosses swapping threats of grievances and tribunal action with threats of disciplinaries.

The employee was accepted to be well qualified, capable and well regarded. His application for promotion was not sensitively handled, however, prompting a series of grievances which eventually ended up in his tribunal claim.

The employee said he felt “disregarded and treated with levity”. He ended up taking time off work for stress claiming this was caused by discrimination and perceived less favourable treatment than his colleagues who were of different ethnic origin.

It is hard not to conclude that even if promotion was impossible at that time, the employer might  have found some other inexpensive  but effective way of at least voicing its appreciation and keeping the valued member of staff happy.

Similarly, a spat between former colleagues ata  fund management company, which has been in the headlines recently, also looks like it could have been handled better.   

The events leading to the tribunal hearing, which is expected to last 10 days, started three years ago. The employee resigned and claimed constructive unfair dismissal, complaining that a colleague had been “vile” and “bullying” calling staff “morons” and “criminals” and creating a deeply unpleasant atmosphere.

In another case a plant hire firm is finding to its cost the importance of following its safety procedures. It fired a crane driver who toppled a crane whilst on his way to a site that had not been safety assessed and which was accessible only via a narrow farm track with grass in the middle and ditches on the side.  The track was alleged to have collapsed and the crane was severely damaged.

The crane driver won his unfair dismissal initially – because of the safety procedure issues. This has now been set aside by the Employment Appeal Tribunal and sent back to another tribunal for a rehearing.

Once again the whole process will take three years of the small company’s time and money, on top of the damaged crane. Better communications with the client and a proper risk assessment might have saved all the hassle and expense.

Fighting cases in tribunals can be time consuming and expensive – with uncertain outcomes. But careful management will always be a better shield against employment tribunal claims than any attempts to weaken employment laws.

employmentlawconsultant@gmx.com

>> If you want guidance about Unfair Dismissal, take a look here.

By Peta Fluendy Employment Law Consultant

Leaking hawkish proposals to abolish altogether employee’s protection from unfair dismissal is certainly one way for the government to curry favour for emerging plans to dilute that protection.

There is no sign, yet, that the coalition plans to implement recommendations made last month to get rid of unfair dismissal laws and allow companies to fire at will using “no fault” dismissals and redundancy style pay offs. 

The latest proposals, which came from Adrian Beecroft, and which were reportedly circulated round Whitehall last month, sit rather uncomfortably with the government’s own consultation about keeping unfair dismissal but making it harder by forcing employees to wait for two years in a new job before they qualify for protection.

Whenever such suggestions are made they are always accompanied by platitudes about how hard life is made for companies by employment laws.

These proposals were no different.

Employment regulation “impedes the search for efficiency and competitiveness,” they said.  In other words companies are all hampered by lazy, ineffectual staff, whom the management are too scared to do anything about.  

Of course employment regulations are a headache sometimes – especially to small companies. But the attitude behind the latest proposals seems rather insulting to both companies and those that work for them. It implies that bosses are too daft to manage and train staff properly and that many employees are too dozy to do their jobs or even care.

The latest proposal seems to give no analysis of how total job insecurity for all employees could actually benefit the economy, especially at a time when consumer confidence is already flagging. And there was no evidence offered that company profits and employment rates are hampered by employment law or why countries like Germany with tough employment regulation seem to enjoy better productivity than we do.

Finally there was no attempt to understand the strides already made towards tilting the regulatory balance towards employers.

Those irritating statutory rules for discipline and dismissal procedures went two years ago for example – and with them went the threat of automatic unfair dismissal for any poor employer which made a slight error. Now it is perfectly possible (though not advisable of course) to make errors in the procedure and put them right later – perhaps at the appeal stage.

In one recent case an employer was arguably shambolic about its discipline and dismissal process.  The employee was a financial controller at a company.  The employer failed even to get straight whether it was sacking him for incompetence or for gross misconduct. The Employment Appeal Tribunal helped the company out by concluding that it meant misconduct and that the employee knew this – despite the company itself claiming the dismissal was for incompetence in its defence against his unfair dismissal claim.

There are robust defences against unfair dismissal claims. This means it is perfectly possible to dismiss someone when necessary.

Companies just need to demonstrate a dismissal is for inability, misconduct, redundancy, or illegality (for instance if professional drivers lose their driving licences). Or if none of these quite apply then they can still dismiss someone for some other substantial reason. This can include sacking someone for refusing to accept shift changes, for instance.

All employment regulations really ask is that companies try to act fairly and give employees a genuine chance to improve or at least defend themselves before they are sacked.  Employers do not even have to be able to prove they were right about perceived misconduct – it is enough to show they believed they were at the time of the dismissal.

Of course acting fairly merely stops tribunals from finding against a company and it is the prospect of having to fight any claim at all that causes all the apprehension. But the vast majority of employers never face unfair dismissal claims. Refusing to hire staff or expand just because of employment regulations would be as absurd as refusing to allow clients on to company premises – in case one of them one day sues for personal injury. 

Employment regulations are unlikely to be the main factor in many business decisions and there is plenty of free advice available on how to adhere to them.

 employmentlawconsultant@gmx.com