Mark Higgins – Employment Law Partner

Being “bruised” by critical remarks made about you by your boss may well make you feel like walking out.

When your boss is the Home Secretary and her remarks are broadcast across the land, your decision may well be justified.

However, in the vast majority of cases, resignation as a knee-jerk reaction to your employer’s unreasonable conduct is not likely to provide a good basis for claiming constructive unfair dismissal.

The law has for a long time been clear that an employee should not normally abandon ship without having made some attempt to resolve matters internally.

In Brodie Clark’s case, the UK Border Agency is likely to argue that as his suspension was justified to enable an investigation to be carried out and that as he would have had an opportunity to challenge any allegations laid against him, he ought to have waited.

To succeed in his claim of constructive dismissal, therefore, Clark will need to prove that Theresa May’s comments to the Parliamentary Committee were sufficiently prejudicial and damning of him that a fair hearing was rendered impossible and that the trust and confidence he previously had in his employers is gone. Even so, a technical win in tribunal will not clear Clark’s name unless the forthcoming investigation concludes that he did nothing wrong.

Frances Nash – Trainee Solicitor

A leaked report commissioned by the Conservative Party suggests that the right for employees to claim that they have been unfairly dismissed should be scrapped.

This is sure to be a headline grabber, and without giving a thought to the full implications of this move, a crowd pleaser for business. The report claims that the current laws leave employees as “unknown quantities” who are allowed to “coast along” and this threatens the potential for business to expand.

However, the right to claim unfair dismissal is only currently available to those employees who have a year’s service with their employer, and if the Conservative proposals are approved, this qualifying time would increase to two years, one might say ample time to consider if an employee is indeed an ‘unknown quantity’ or a ‘coaster’.

Even so, what effect on the economy would it have if there was no job security for the workforce whatsoever? One day at work, next day no job, no pay, no warning, no explanation. It is not true to say that current unfair dismissal laws leaves the employer with no course of action when dealing with a troublesome employee.

It is perhaps more a question of ensuring that employers know exactly what they can do within the law fairly so that no claims can be brought against them. Surely it would be better to work towards a system that provides certainty and clarity for the employer and the employee and that, in turn, will bring a stable and more productive economy.

Mark Higgins, Employment Law Partner

It has been reported in this morning’s Manchester Evening News that Vicky Kloss, Manchester City’s chief communications officer, was stopped from entering the players’ tunnel after yesterday’s FA Cup clash at Notts County – because she is a woman 

The complaint of sexism, made by City executives against Notts County officials singularly fails to take into account the fact that the rule is in place for a very valid reason. The players’ tunnel gives direct access to changing areas where there would be a possibility of men visible in a state of undress.

Turning the no-female policy on its head, one could argue that had there been no ban in place, Notts County, or for that matter, individual players, might be vulnerable to accusations of indecent exposure or sexual harassment should they inadvertently reveal themselves to a female who happened to be passing by. Surely, the sensible thing for Ms Kloss to have done would be to call or text Mr Heggie and ask him to come out to meet her.

It is grossly unfair to lay any blame on the security guard who, after all, has been told to enforce a set of rules. He cannot be expected to assess the rule for its potential discriminatory effect on the presumably very rare occasion he is called upon to enforce it. As far as he is concerned, the rule exists to protect the dignity of both males and females alike.

Jennifer Smith (Employment Solicitor)

It’s a problem for employers, without a World Cup thrown in!

With drink increasingly becoming a common place feature of many people’s daily social lives (particularly in the 16 -29 age group), the impact is leaking into the workplace.

A business will suffer if any employee drinks during working hours in such a way that the work suffers e.g. a boozy client lunch. A business will also suffer if an employee phones in sick after a heavy night drinking the night before, or who comes to work with a hangover.

Lower productivity, accidents, effect of team morale and employee relations, sickness, lateness, absenteeism and adverse effects on company performance, image and customer relations are problems that immediately spring to my mind.

Employers should tackle the issue head on, and should avoid burying their head in the sand. They should have an alcohol & drugs policy – they should be wary of forcing employees to undertake alcohol testing.

Jennifer Smith (Employment Solicitor)

As featured in Crain’s Manchester Business.

Recent reports have confirmed that the Employment Tribunals Service in the North West is currently suffering such a backlog of cases that people are now being told that it will be at least 12 months before their case is heard.

There has indeed been a sharp rise in claims over recent years in various areas of employment law, but especially regarding class actions, with the most prominent escalation being in equal pay disputes, and the tribunal system is straining under the massive rise in equal pay claims.

In addition to the surge in class actions, the economic climate in 2008 – 2009 led to a sharp increase in unemployment and widespread redundancies across all sectors of the economy, again leading to a substantial rise in claims being processed by Tribunals. Predictably, unfair dismissal claims overtook equal pay as the most frequently lodged claim in 2009, and redundancy pay cases rocketed.

Tribunals have indeed tried to address and clear the backlog, by piloting additional evening hearings between 6.00 and 8.00pm.  The idea is that the evening sessions are expected to concentrate on simpler cases which could be resolved in less than an hour.  Other suggestions have included the introduction of a preliminary assessment for all claims submitted to the Tribunal Service, to “weed out” those which are frivolous or which have no reasonable prospect of success, prior to the employer having to incur the costs in defending them. It has also been suggested that a nominal fee should be introduced (as is the case with court claims), in the hope that this would put off those lodging claims simply as a negotiating tactic.

Unfortunately, there is no simple reason or answer to this dilemma, however, the Tribunals are trying their best to deal with the situation and accommodate people as best they can.

Jennifer Smith (Employment Solicitor)

Not necessarily, so act with caution! If you think you have an issue with a personality clash between employees, you should take a very careful and well thought out approach to avoid an employment law claim. 

Firstly, let’s go back to basics – where an employee is eligible to claim unfair dismissal, they must have 12 months service, and you must have a ‘potentially’ fair reason for dismissal and also act reasonably, in all the circumstances, in dismissing for that reason. So what are the six potentially fair reasons to dismiss?

These are redundancy, capability, conduct, some other substantial reason, retirement and where there is a statutory prohibition on continuing to employ someone i.e. it would be illegal to continue to employee them. Some other substantial reason is often regarded as a ‘catch-all’ category and covers a number of employment related reasons. The clash between the two individuals may be grounds for a fair dismissal, perhaps for conduct or even some other substantial reason if one employee is simply being unreasonable. However, the company must believe that the reason for the dismissal is serious enough to be capable of justifying dismissal. So, if the more senior employee is simply acting unreasonably and looking for an excuse to dismiss this junior employee, he would be likely to lose any unfair dismissal claim brought by him at an employment tribunal.

If however, the junior employee’s non co-operation is putting the company’s business at risk and it is clear that the breakdown between them is beyond repair, then this may well be a potentially fair reason for this employee’s dismissal.

Rob Illidge (Marketing Executive)

Search-based ads will use DPI (Deep Packet Inspection) technology to scan a users tweets and relay ‘relevant’ and targeted ads back.

I suppose you could argue what is the problem with that? If I was desperately seeking an Employment Solicitor, not that I would , and vented my frustrations via Twitter, I would be more than happy to have a targeted ad from a Manchester based Solicitor delivered.

After all I’m using their platform so they are entitled to pursue revenue in this way.

Then there is the privacy issue. There’s always a privacy issue.

Why should Twitter ‘bombard’ users with ads that may not be relevant? And what if these ads take me to somewhere I thought I was buying ‘genuine UGG boots’ from, and ultimately ruin my online experience as a result.

Twitter must improve on Facebook’s mistakes, who still deliver inappropriate and wasteful adverts. No I don’t want to ‘date a hot girl from Manchester’, or need a ‘hot girlfriend in my area’. One is just enough thank you, lovely of them to ask though.

Alternatively, although less likely, is tweet-based advertising, which would send out ads with user’s tweets. I for one do not want an ad for “Johnny’s XXX site” (not the artist) being sent out on the corporate account.

However it has to be said that Twitter does already advertise, in case you missed it, because I did, they are found on the top right hand side of the Home page underneath followers. These ads are completely un-targeted and are barely noticeable as they only take up a small percentage of the online page real estate.

As I use an unofficial social media platform (Tweet Deck), I never see these ads, and doubt many other users will.

It will be interesting to see which route Twitter takes, Facebook have successfully integrated a somewhat ‘subtle’ advertising model, without a mass exodus from users, and I very much doubt it will be long before Twitter does the same.

And I never did get those UGG Boots

Jennifer Smith (Employment Solicitor)

Some excellent news to cheer everyone up today.

The Government has announced that, as part of the celebration of the Queen’s Diamond Jubilee, an extra bank holiday is to be created on 5 June 2012. The late May bank holiday is going to be moved to 4 June 2012, so as to create a Diamond Jubilee long weekend.

Jennifer Smith (Employment Solicitor)

In addition to this, the minimum amount of compensation where an individual is unlawfully excluded or expelled from a union and not admitted or re-admitted by the date of a tribunal application falls from £7,300 to £7,200.

The revisions made by the Order take effect when the event giving rise to the entitlement to compensation or other payment, occurs on or after 1 February 2010.

You must have been asleep for the whole of 2009, if you escaped hearing about the Heyday case! Employers across Britain breathed a temporary sigh of relief when the High Court ruled that employees have no automatic right to work beyond the age of 65. The High Court upheld the law allowing UK employers to force employees to retire at, or after the age of 65 – even if the employee does not want to.

The Government’s “Building a society for all ages” paper was published in the summer of 2009, and the Government is now consulting on the reasons industry uses mandatory retirement ages; the impact of increasing or removing the default retirement age; and how the cost of this removal or increase could be mitigated and the benefits flowing from it. The Consultation closes in February 2010. Watch this space!