Blog: Still able to say enough is enough

Rather like my recent blog on constructive dismissal, it is always helpful when their judgy-nesses have another look at your bread-and-butter employment law topics  –  in this case, ‘what type of conduct justifies a fair dismissal’? Two cases recently published have looked at this exact point.

Two gross misconduct cases

The first was Mbubaegbu v Homerton University Hospital, which was a case that concerned a senior surgeon in a London hospital. Following some serious dysfunction within the department that Dr M worked in, new protocols and procedures to be followed by all surgeons were established and it was made clear that they would be monitored to ensure compliance. All the surgeons in Dr M’s team were audited and found to be lacking in some aspects of following the protocols. However, Dr M was the only surgeon to be dismissed for gross misconduct as a result. He challenged the fairness of the dismissal on the grounds that the small breaches of protocol identified by his employer could not be ‘totted up’ to amount to gross misconduct. He also challenged why he had been singled out for dismissal.

The second was Quintiles Commercial v Borgongo. Mr B worked in pharmaceutical sales. After failing to complete compliance training and missing a compulsory training course, he was dismissed with notice for ‘gross misconduct’. At the internal appeal, the employer re-categorised the misconduct as ‘serious misconduct’, but nonetheless upheld the dismissal. While Dr M in the above case lost his claim for unfair dismissal, Mr B won his claim, as the ET found that he should not have been dismissed for serious misconduct but rather should have been given a final written warning. Appeals were launched by the losing parties in each case in the Employment Appeal Tribunal (EAT).

EAT’s views

With Dr M’s EAT appeal, the EAT had little difficulty agreeing with the ET that trust and confidence had been undermined by Dr M’s conduct even though there no one act of ‘gross misconduct’, but rather just a pattern of non-compliant behaviour from Dr M which led to increased risks for patients. The EAT noted that “it is quite possible for a series of acts demonstrating a pattern of conduct to be of sufficient seriousness to undermine the relationship of trust and confidence between employer and employee“.  Further, it  saw “no reason why an employer would be acting outside the range of reasonable responses were it to dismiss an employee in whom it had lost trust and confidence in this way”.

For Mr B, the EAT went right back to basics and reminded itself that the actual legislation (section 98 Employment Rights Act for you boffins out there, you know who you are!) relating to unfair dismissal refers only to ‘a reason that relates to the conduct’ and says nothing about ‘gross misconduct’. Also there is no rule that says that dismissing an employee without prior warnings for conduct that is less than gross misconduct must always be judged to be unfair – this view is a ‘gloss’ that has been placed over the legislation by various cases over the years.  The EAT found that the ET had taken an overly rigid view that, where conduct fell short of gross misconduct, dismissal could only be appropriate if other warnings were in place. The EAT felt that the ET should have considered the entire circumstances of the case, including the ACAS code of practice and the employer’s disciplinary procedure; but instead it had fallen into the trap of deciding what it would have done, had it been the employer in that case. The case has been sent back for another ET to look at, although I imagine it will settle long before that.

Comment

These two cases on misconduct dismissals remind us of several things.

First, employers do still enjoy a wide discretion in terms of what can justify a fair dismissal and the ‘band of reasonable responses’ holds strong for now. Just because another employer in the same situation might not have dismissed the employee does not render the dismissal unfair.

Secondly, both cases involved strong compliance issues: Dr M and patient safety; Mr B and compulsory training as regards the company’s pharmaceutical products. So, if something is important to you as a business, make sure your employees know about it and know the sanctions they face if they step out of line.

I think all of us would recognise characters like Dr M and Mr B. Dr M was a highly experienced surgeon with a clean record: however, he clearly didn’t agree with the new protocols imposed and flouted them in small ways of a long period of time. Mr B knew he had to do the training, but found lots of reasons not to do it and ignored very reasonable management instructions.

It is comforting that, in these types of common scenarios, employers are still able to safely say ‘enough is enough’.

Anne-Marie Boyle
Partner

or call 0117 325 0924

Blog: Camels, broken backs and constructive dismissal

Constructive dismissal is a bit like the metaphorical bar of slippery soap. We all think we know what it looks like, but sometimes its concepts can be harder to grasp. From an HR perspective it is fairly easy to spot the actions that might provoke an immediate resignation – a significant change in someone’s duties, a cut in salary and so on.

But the harder ones to spot (or avoid) are the breaches of the implied term of mutual trust and confidence. Here, a one-off act can be enough to justify a resignation but, far more often, it is a series of events which culminate in an employee saying ‘enough is enough’. This is known as the ‘last straw’ doctrine and it means an employee can resign in response to a series of breaches of contract or a course of conduct by their employer which, taken cumulatively, amounts to a breach of the implied term of trust and confidence.

Straw that broke the camel’s back

Sometimes the individual incidents in this chain of events may be more modest than something substantial that would justify being seen as a one-off act. Indeed, it is called the ‘last straw’ doctrine because often the final incident in the chain is in itself insubstantial, but is nonetheless sufficient to render the whole series of incidents as a breach of the implied term. The test is whether, viewed objectively, the whole of the alleged course of conduct showed that the employer, over time, had done enough to breach mutual trust and confidence. Tricky – we all have experience of those employees where nothing is ever right – but are these constructive dismissal cases waiting to happen?

New case confirms principles

Cases come along regularly enough to remind us that this is still a vexing area for employers. The recent decision in Kaur v Leeds Teaching Hospital NHS Trust (Court of Appeal) is one of the those cases that gives some comfort to employers but is also a masterclass in the’ last straw’ doctrine.

In this case, Ms Kaur had an argument with a fellow employee. Both were disciplined and given final written warnings because their argument had been within ear-shot of hospital patients. Ms Kaur appealed the decision and, when this was turned down, she resigned claiming constructive dismissal. She alleged that the rejection of her appeal was the last straw in a series of acts which, taken together, amounted to a breach of the implied term of trust and confidence (she was relying on complaints she had made some 15 months previously). Her ET claim was struck out in its early stages as having ‘no reasonable prospect of success’ and she appealed this strike out decision first to the EAT and then to the Court of Appeal. However, she was unsuccessful as the Court of Appeal found that an entirely justifiable disciplinary proceeding could not amount to a breach of contract on the part of the employer.

In coming to this conclusion, the Court took the opportunity (as they often can’t resist doing) of having a right old rummage through the authorities in this area. Out of their bag, they pulled the (earlier) Court of Appeal decision in Waltham Forest v Omilaju. In doing so, and by giving it a big judicial thumbs up, they were saying this is the case you should be following and don’t bother yourself with others. So, what did this case say about the’ last straw’ doctrine?

In looking at any case where the employee is alleging that a final act by their employer has been the last straw in making them resign, court will look at:

  • The final straw must contribute something to the breach, although what it adds might be relatively insignificant but not completely trivial.
  • The act does not have to be of the same type as earlier acts complained of.
  • It is not necessary to characterise the final straw as “unreasonable” or “blameworthy” conduct in isolation, though in most cases it is likely to be so.
  • An entirely innocuous act on the part of the employer cannot be a final straw, even if the employee genuinely, but mistakenly, interprets the act as hurtful and destructive of their trust and confidence in the employer. The test of whether the employee’s trust and confidence has been undermined is judged on an objective basis, not looked at from the employee’s subjective point of view.
  • Even if the employee looks like they have waived the right to rely on previous potential breaches by continuing in employment on those earlier occasions, they can still rely on them as part of the ‘last straw’ doctrine.

Points to take away

I think the main ‘take away’ here is that, however difficult the employee, if employers act in good faith and have reasonable and justifiable grounds for what they do, the employee will have difficulty arguing that such action, however unwelcome, provides grounds for a constructive dismissal claim under the ‘last straw’ principles.

It is important, at all times, to remain professional and pause before you send an emails to an irritating employee that you might regret!  Also, I think you can take some comfort that, putting aside completely inept disciplinary proceedings, conducting a disciplinary hearing will not put you at risk of a constructive dismissal case.

Is it possible to salvage a relationship like this? Possibly, but not always.  If you are faced with a claim for constructive dismissal based on the ‘last straw’ doctrine, it is worth remembering that it is much harder for an employee to win an unfair dismissal claim based on constructive dismissal, compared with a standard unfair dismissal claim, as they often fail to persuade the Tribunal that the employer has acted in breach of contract.

Anne-Marie Boyle
Partner

or call 0117 325 0924

Blog: When does ‘no’ actually mean ‘yes’? – a question of consent

Being a total law nerd, I like nothing more than sitting down with a cup of tea, a Hobnob (other biscuits are acceptable) and a ‘fresh off the press’ Court of Appeal decision. I enjoy nodding sagely when their Lord and Ladyships come up with a decision that I entirely agree with and smugly thinking ‘well I would have advised like that anyway’ or ‘why did anyone bother to bring this case to appeal?’.

But the odd decision leaves me frowning, and the very new decision of Abrahall v Nottingham City Council has done just that, since it has really significant implications for a well-established HR practice.

Pay freeze

In brief, in 2011 Nottingham City Council (NCC) took the decision to implement a two-year pay freeze which meant that employees’ usual incremental pay progression was suspended. NCC took the view that there was no contractual right to incremental pay progression and made the case that if this pay freeze could not be implemented, redundancies would have to happen. The recognised unions were not happy and made their objections clear. They also balloted their members as regards industrial action but couldn’t muster enough support.  So no formal type of dispute was raised nor any collective grievance brought.  The pay freeze went ahead.

This particular situation is not quite as straight-forward as where an employer announces that a contractual change is going to occur and any employee who wants to object needs to do so by a certain date, or will be deemed to have consented to the change.  But for the purposes of what the implications are for employers, it’s still very relevant.

No implied consent?

Two years later, in 2013, NCC announced that, for financial reasons, it would have to impose a similar pay freeze.  At this point, several hundred employees brought claims in the Employment Tribunal (ET) for unlawful deductions of wages, claiming (a) they had a contractual right to incremental pay progression and (b) they had not agreed to vary this term of their contract.  They were basing these claims on the argument that NCC had unilaterally changed their contracts two years earlier (by imposing that first pay freeze) but the staff had never agreed to it – silence and a failure to sue at the time should not be treated as their content, they argued.  Whilst all the employees lost their claims in the ET, they had better luck in the Employment Appeal Tribunal and even better luck in the Court of Appeal.

The Court of Appeal found, first, that all affected employees enjoyed a contractual right to annual incremental pay rises. The second, and main, part of the judgment went on then to look at whether, by their actions (or inactions!), the employees should be treated as having impliedly agreed to vary this contractual term. Thankfully, the Court of Appeal rejected an argument put forward by the employees that continuing to work following a pay cut/pay freeze can NEVER amount to implied consent.  However, the Court also found that it was not that case that, by continuing to work, an employee will always eventually be found to have accepted a pay cut/pay freeze.  Silence does not necessarily mean consent.

New legal test

The Court identified three issues to consider when an employer has told its workforce that it is making a contractual change and does not seek consent in the standard way:

  1. I will call the first one the ‘only referable’ test. It relates to how much one can safely conclude from the fact that, when a change in terms is imposed, the employees don’t sue or resign but continue to work as normal.  Does their continued working imply their consent to the change? The Court ruled that question to be answered by a court or ET dealing with such a case is: is the employees’ conduct in continuing to work ‘only referable’ to their having accepted the new terms imposed on them or is there another reason why they continued working?  I imagine most employees could fairly easily argue that the reason they carried on working was not because they consented to the change but because they feared losing their jobs if they complained or because financial circumstances meant that they couldn’t just walk out of job.
  2. Second, what level of actual protest did the employees make (or continue to make) regarding the contractual change? Remember in this case the unions were fairly vociferous around the time, but this didn’t translate into either industrial action or a collective grievance.  So the bar is not set that high here. As long as the employees or their representatives object in some way, this could be enough to overturn an assumption that their continued working and lack of claims or resignations amounted to consent.
  3. And whilst it is still possible to argue that ‘after a period of time’, the employee may be taken to have accepted the changes, identifying this point in time is going to be difficult.

In short, the Court said that these are the hurdles an employer must overcome if it wishes to establish that an employee’s ‘no’ actually meant ‘yes!

On the basis of the above, the Court of Appeal found that the employees had not impliedly accepted any change to their contract and presumably were now entitled to back pay for the entire period.  A big bill for NCC – and I imagine they wish they had undertaken redundancies instead.

Practical implications

So, where does this leave employers wishing to bring in some much needed contractual changes?

Up until now, the law had been fairly clear. If the change has an immediate impact on the employee, even if they protest at the time, if they then continue to work without further protest, the employer could safely assume after, say 6 months, that the employee had impliedly accepted the change through continuing to work and not sue or resign.  This new decision throws that certainly up in the air and raises the spectre of employers facing unlawful deduction from wages claims for back-pay going back several years (cue frowning face from Anne-Marie).

How, then, can any contractual change be safely implemented?  The only way to achieve a risk-free change is to gain the express consent from your employees – signed on the dotted line (don’t rely on sending out a letter and not chasing up a response).  This involves a ‘sales job’ from the employer (why is this change REALLY necessary?)  and perhaps some compromise.

The other two routes have always been to either push it through and use the ‘silence means consent’ option, as we’ve been discussing; or the good old SOSR option of terminating the existing contract (with notice) and offering a new one containing the new terms.

For many employers this SOSR ‘dismissal and re-engage’ route is the nuclear option and one to be avoided, and understandably so.  This option does involve a dismissal and can lead to unfair dismissal claims.  It will also trigger s.188 collective consultation if 20+ employees are affected.  However, on the plus side, if the employee accepts the new contract, there can be no on-going breach of contract – so it does bring a great deal of certainty.

The future

We seem to have arrived at a point where SOSR dismissal and re-engagement seems like a safer option than pushing changes through and hoping that silence will be treated as consent.

Alternatively, the employer might decide to make redundancies instead, which seems crazy to me (cue more frowning face).

All employers need to consider change at some time or another – if you have a change project in mind, please feel free to give us a call.

And I should add that here at Menzies Law we also have a clever approach that can reduce your risks considerably if you are indeed considering SOSR.

We would love to help you find your way through!

 

 

Anne-Marie Boyle
Partner

or call 0117 325 0924

Blog: Lies, damn lies and dismissals

If a fairy dies every time an employee is given a fake reason for their dismissal, then there can’t be many fairies left out there. Well, not in my experience of over 20 years advising on employment law issues.

Hand on heart, how many of you have told a poorly-performing employee that their job is in fact ‘redundant’?  Or the ‘pain in the bum’ employee that they have failed their probationary period because they just don’t fit in?  False reasons are given for dismissal all the time. Usually it is either to save someone’s feelings or to mask the fact that the line manager has just failed to manage the employee’s performance or conduct carefully and has decided ‘enough is enough’.  In some cases, it is to hide blatantly discriminatory reasons or to get rid of a whistle-blower.

In lots of cases, employers get away with giving fake reasons for a dismissal.  The employee might know deep down that they are not performing, and are therefore willing to go along with the story that they are redundant: it certainly looks better on the CV. Other employees know that the reason they have been given is false but possibly have no realistic legal claim – particularly those with less than 2 years’ employment where there is no obvious discriminatory or whistleblowing angle.

Occasionally employers get caught out, and Rawlinson v Brightside Group plc is one of those examples. Mr Rawlinson had been brought in as an in-house lawyer. Very quickly, the MD decided Mr R wasn’t up to scratch and determined that he should go. However, the MD decided he would like Mr R to do a proper handover and therefore told him that he was being dismissed but that he was required to work his notice. In order to sweeten the pill, Mr R  was told that the company had decided to outsource their legal service, rather than raise any concerns about Mr R’s performance. Mr R smelt a rat and made his case that, if there was to be an outsourcing, then this would be covered by TUPE and he should therefore be transferring rather than being dismissed. BG were caught out, as they had made no plans to outsource their work.  Mr R resigned with immediate effect and brought a claim for wrongful dismissal (i.e. his full notice pay – a breach of contract claim).

The Employment Tribunal rejected his claim, but this was overturned by the Employment Appeal Tribunal. They found that the employer had acted in breach of the implied term of trust and confidence. They reasoned that, by deciding to give him a reason for the termination of his employment, the employer had assumed an obligation not to mislead him, an obligation that it then breached. Mr R was entitled to have resigned in those circumstances and claim pay for his full notice period. This was only 3 months’ money – so would not break the bank, but for a higher paid employee and a longer notice period it could have more impact.

Of course, Mr R did not have sufficient service to bring an unfair dismissal claim, which is why he was only able to claim for wrongful dismissal.  But he would undoubtedly have won an unfair dismissal claim too if he had been able to bring one: based on being given a false reason for dismissal.

George Washington said ‘It is better to offer no excuse than a bad one.”  In practice, it is going to be very hard for an employer to not give a reason to an employee when they dismiss an employee and there is certainly still room for the odd ‘white lie’ that I fully appreciate can serve to soften the blow.

I believe there are two messages worth taking from this case.  First, it’s yet another reminder to encourage your line managers to have more honest conversations with their staff, and to follow procedures, so that problems are tackled earlier and more honestly – especially poor performance  – meaning that a ‘manufactured’ dismissal reason is less often required.  Second,  if you are going to give a false reason for a dismissal you need to at least ensure that you pick a decent excuse that you might be able to argue the case for, if it comes under closer scrutiny.

Anne-Marie Boyle
Partner

or call 0117 325 0924

Blog: Another new year’s resolution – get on top of GDPR!

The changes to data protection law (the General Data Protection Regulations, to give it its posh name) are coming at us in just over 4 months’ time on 25 May 2018.

With this in mind I have put together a handy check list to help you move GDPR from your ‘to do’ pile into your ‘doing now’ pile.  If a list is too much for you – click here for our handy infographic which summarises these points.

Step 1: Assembling your team

Identify your team and start raising awareness. You might be a spoke in the wheel or leading the gig. Either way you need to gather your team now. Consider including HR, legal, compliance, IT, finance, marketing and research and development. You will need people from all these groups to give a proper oversight as to how data is received, stored, processed and destroyed within your organisation

It would be useful to start by looking at your organisation’s risk register, if you have one. Implementing the GDPR could have significant resource implications, especially for larger and more complex organisations. You may find compliance difficult if you leave your preparations until the last minute. The good news is that if your organisation is already data protection compliant – you are already half way there.

Some very large organisations either must have or would benefit from having a Data Protection Officer – are you one of them?

Step 2: Conduct an Audit

You will need to know how big a job you have and a good place to start is with a data protection audit, which should show how data flows through your business and will help you develop a compliance plan. It will also help you identify the 4 ‘W’s’

  • What you hold
  • Why you hold it
  • Where it came from
  • Who you share it with

You will also need to ensure that any third party data processors that you have contracts with also comply with the GDPR. Identify these data processors (off-site payroll etc) as a starting point and ask them what they are doing to ensure they are GDPR compliant.

Step 3 – Review your privacy notices

You will have something like this already – but you might call it a ‘fair processing notice’. Either way, it will need a re-fresh.  GDPR mandates a host of required information, which a data controller must provide to an individual data subject at the point at which personal data is collected. These include details of:

  • the legal basis upon which personal data will be processed;
  • how long personal data will be retained;
  • if, and the extent to which, personal data will be transferred overseas, and, in the event that personal data will be transferred outside of the EEA, the appropriate safeguards in place to protect that data; and
  • the mechanism by which an individual would make use of their data subject rights, including:
    • how to make a subject access request; and
    • how to request the deletion or rectification of personal data.
    • Rights to object if employer relying on legitimate interest as legal basis for processing data
    • Right to complain

Step 4 –  Get to know individual data subject rights

This is an area of significant enhancement under GDPR – we like the summary: ‘delete it, freeze it or correct it’. Whilst rights vary- these only ‘kick in’ where there is a non-compliance with data protection  principles. If you are in HR, expect your employees to be interested in these rights (there will be lots of publicity about them come May) and be ready if a challenge is presented.

Step 5 – Subject Access Requests – the changes

Mercifully, this is staying broadly similar to the current system but with some changes – out goes the 40 day time limit and a request for £10 – in comes responding ‘without undue delay and within one month unless the request is complex’ and no fee (unless the request is manifestly unfounded or excessive when a reasonable fee for administration costs can be requested). ‘Manifestly unfounded’?, ‘excessive’?, who knows that these mean? We will probably have to wait to get some decisions from the Information Commissioner’s Office (ICO)  before we fully know the boundaries.

Step 6 –  Get to know the lawful basis for processing data within your organisation

There must be a legal basis for processing personal data. This has not changed. Currently the majority of data controllers use ‘consent’ as their lawful basis for processing data. Changes under GDPR mean that if you wish to use consent, it will be much harder (see Step 7 below), and will not really work in an employment context. Other lawful bases include: processing is necessary for the performance of a contract or where there is genuine legitimate interest (including commercial benefit) to processing personal data.

Step 7 – Using consent as a lawful basis for processing – stop and think!

As mentioned above – there will be stricter conditions if the data controller wishes to rely on consent as its lawful basis for processing data. Under GDPR, consent must be freely given, specific, informed and unambiguous with a genuine free choice. This is a whole world away from a box to tick or untick and will be one of the areas where we will see the most changes.

Step 8 – Be ready to report Data Protection breaches

Much has been made of the tougher regime and fine structure of the new GDPR for data protection breaches and this shouldn’t be ignored. For organisations of 250 employees or less you will be required to maintain records of activities related to higher risk processing such as processing personal data that could result in risk to the rights and freedoms of individuals. If you are a 250+ employer, you must maintain additional internal records of your processing activities.

If there is either an accidental or deliberate personal data breach leading to loss, destructions or publication of personal data, your organisation must notify the Information Commissioner’s Office within 72 hours and a record must kept of all data breaches. There is no reporting requirement if the breach is unlikely to result in a risk to data subjects. In any event your organisation will need to have a clear policy as to how internal breaches are reported.

All this will lead to a greater emphasis on compliance and we all know that with compliance it is not just enough to comply, you will have to SHOW that you comply. In reality this is going to mean ensuring you have the right policies and procedures in place to show how you comply with DP. Start with dusting off all your current policies to assess how GDPR-ready they are, and if you don’t already have one a Data Protection policy will be the absolute starting point.

Step 9 – Data Protection Impact Assessments – the future starts here

The GDPR requires a data protection impact assessment under certain circumstances, including where the processing is likely to result in a high risk to the rights and freedoms of data subjects  Therefore this will apply when the data controller implements new programs, systems, or processes, or when the data controller makes changes to programs, systems, or processes.

Get used to including a data protection impact assessment as part of any key project going forward.

Step 10 – Keep calm and keep checking the ICO website

You are not alone. Many organisation have left GDPR in the ‘too difficult’ pile. Rather like eating an elephant, it is always less daunting to do this in small bites. We are here to help with any of your data protection queries. Also, the ICO  is a very useful resource and will be releasing several guides over the coming months. We will be keeping an eye on these too but here is the link for the curious. https://ico.org.uk/

Anne-Marie Boyle
Partner

or call 0117 325 0924

June 2017 Newsletter – Education Sector

It’s June and the month of warm (some of them too warm!), long, sunny days or, failing that, at least there’s been the Election and the wacky hats of Royal Ascot for a bit of light entertainment! However, we’ll try to compete for your attention with our update on HR/Employment law news. This month we keep you informed with a ‘back to basics’ FAQ session on Apprenticeships and also the Levy and a reminder and update on the General Data Protection Regulations due to come into force this time next year.

Our case update this month focuses on the rights of workers mistakenly labelled as self-employed to carry over of statutory annual leave entitlement, making an employee redundant following a period of long term sickness absence and whether it is discriminatory to pay at different rates for a man taking shared parental leave than a woman taking maternity leave.

What we’ve been doing in the Education sector recently…

This month we hosted a special event around the theme of  ‘How to get the best from your Trade Union relationships’. It was one of most highly attended seminars we have held and whilst it wasn’t specifically aimed at Colleges, it was lovely to see a number of you there.

There weren’t too many horrors stories, but we know that several delegates went back to work resolving to pull out (if they could find them!), their Union Recognition Agreements, dust them off and take a good look at them to see if they were still ‘fit for purpose’. We are currently helping a number of businesses, including colleges, update their TU documentation, so if you need a hand, give us a call and we would be happy to pop in for a chat and coffee and let you know how we can help.

Anne Marie Boyle
Senior Solicitor
or call 0117 325 0924

 

May 2017 Newsletter – Education sector

It’s May, named after Maia, the Greek goddess linked to spring and growth.  We think it fitting therefore that this month we were all, including employers, asked to open up our minds during Mental Health Awareness week (from 8 to 14 May) and take a fresh look at mental health.  We’re doing our bit to take part in this Newsletter, by looking at the impact of mental ill-health in the workplace and what employers can do to support staff suffering from the condition.   We also update you on the Government’s Response to the ‘High heels and workplace dress codes’ report and the latest update on the ongoing saga of holiday pay – although it’s good news for employers this time!

Our case update this month focuses on whether a poor attitude to organisational change can amount to gross misconduct, despite procedural failings; whether TUPE Employee Liability Information needs to include detail as to whether employees’ entitlements are contractual; and the EAT’s decision that it is discriminatory on grounds of disability to make a job applicant with Asperger’s syndrome sit a situational judgment test (multiple choice test) as part of the recruitment process.

What we’ve been doing in the Education sector recently…

This month we hosted a special event for our College friends around the theme of Equalities. It is such a wide topic but we managed to squeeze in a review of all the most recent disability discrimination cases (the area of discrimination law where we see the most legal cases), the clash of protected characteristics in the workplace, and gender pay gap ( Luke’s favourite topic).

We were also very lucky to be joined by Clare Peterson who is the Equality and Diversity manager at the University of Gloucestershire (her remit covers both students and staff). She had us all thinking about our unconscious biases during her fascinating slot. Thank you to those who attended and the lovely feedback. We will look to run this course again later in the year as we know it is such a relevant topic for Colleges.

Anne Marie Boyle
Senior Solicitor
or call 0117 325 0924

 

Blog: Trade Union Law Part 2 – How to get the best out of your trade union relationships

In the first part of our trade union law series, we looked at the recent changes in TU law and how they could affect your business. This time we’re looking at the tricky business of maintaining a healthy and mutually beneficial relationship with your TU.

At Menzies Law we have over 20 years’ experience of working with business clients and their recognised trade unions. We’ve probably seen most things that arise with these types of relationships – the good, the bad and the ugly. So, we have gathered our collective knowledge to create a list of our top tips for getting the best out of your organisation’s trade union relationship.

1. Remember that you are both working for the same mutual aim of improving organisational performance and sustainability, which in turn benefits both the business and employees

It can be easy to lose sight of this sometimes, particularly if your trade union relations are currently very much ‘us and them’. Remind yourself and your union that your aims which relate to improving working conditions, increasing performance and the sustainability of the business will in turn mean greater job security and a better place to work. In our view, things work better if the business and the trade union both acknowledge that the other has a legitimate and valued purpose.

2. Analyse the working relationship you currently have with your union

How would you characterise your union relationship? Is it friendly – this is definitely a good place to start, but is it too friendly?  At the other end of the spectrum, are relations toxic, combative? Or perhaps they are somewhere in-between – frosty? Distrustful? Wherever you are on the spectrum, does it need to change?

In our experience, the best working relationships are definitely on the friendly end of the spectrum, but they still remain professional and based on mutual respect where either side is prepared to challenge where it is necessary.

3. Toxic union relationships can be turned around – but it takes time and commitment

The reason why relations with a union within a particular organisation are bordering on the toxic is often long forgotten in the mists of time. If yours is one of them, it is time to shake it up. No-one gains from a relationship like this and as a business you are entitled to benefit from a professional working relationship with your union.  This cannot be solved overnight and will involve some time and commitment. One of our client’s relationships with their union was taken to the brink last year when their union brought industrial action over proposed changes to pay. A lot of trust and good-will disappeared as a result of this process, but one year on, they are happily working together sorting out a TUPE transfer. How have they managed this? By meeting face-to-face with the union after the industrial action was completed, acknowledging that they had all been through a difficult time and making a professional commitment to repairing their relationship for the good of the organisation and its staff.

4. Adopt an employee relations strategy – and stick to it

We have seen these developed in all sizes of businesses and they can be really effective. The very best ones ensure that the employee relations principles and processes are aligned closely with the company’s strategic goals: essentially, everyone is pulling in the same direction. Also, they emphasise the need for positive leadership, strong working relationships and meaningful consultation.  However, this type of good employee relations strategy does not appear over-night, nor is it created by one document. It will be a sizeable commitment for a business and one that will full need support from the Board.

5. In the words of Spandau Ballet – ‘Communication let me down, and I’m left here’

We all know it is true, but it is too often ignored – regular communication between management and the recognised trade union vastly improves the quality of the working relationship and minimizes conflicts. In our experience, if an employer is in constant communication with its union and involves them in formulating the best strategies to handle issues that affect the business, the employer and union can maintain a good, conflict-free working relationship. This doesn’t mean you should ignore your own workforce or leave the communication down to union. It is important for businesses, even with strong union relationships, to maintain the communication link with their staff, particularly where they might have a different stance or angle to present than the union.

6. Keep a regular review on your trade union documentation

We have seen some very old and crusty collective bargaining agreements in our time, dating back many years. Sometimes businesses can’t even find their collective agreements when we’ve asked for them.  For a living relationship, we are often surprised by how little thought is given to the actual documents governing the relationship. If your collective agreements are over five years old, we recommend that you dust them off and have a good look at them. Are they working? Are they fit for purpose? Do they properly reflect the working relationship you have (or more importantly, wish to have) with the trade union? If not, it is time to update them.

7. Know the law relating to trade union relationships – or know where to look for help

We’re lawyers, so we would say this, but… Trade union law is highly complex and covers everything from recognition and de-recognition, collective bargaining and statutory consultation, industrial action, collective agreements and contracts, and not forgetting right to time off work for trade union activities. Quite a list!  The more you know, the better equipped your operational managers will be to deal effectively with trade unions during the course of their day-to-day managerial activities.

8. And in the words of Depeche Mode – ‘People are people so why should it be, you and I should get along so awfully’

Where people and human relationships are involved, it is hard to avoid bumping up against some psychology. As we have said above, your organisation’s relationship with its union is a ‘living’ one and when working best, your mutual aims will be aligned. As with any relationships, however, there needs to be investment to get the best out of it!  There will be certain people in your business who will hold the keys to the trade union relationship and you should consider – are they right for the job? Do they need some help? They might benefit from some specialised training to help them develop their relationship with the union. This could include:

  • Understanding the influence triggers that people respond to when making choices and how to appeal to their preferences
  • Understanding how you negotiate – is it a positive style (open, questioning, listening, being realistic) or a negative style (combative, point-scoring, personalising)?
  • Recognising different personality types and why some people are “difficult” to engage with.

If you’ve found this series on TU law helpful, and would like to find out more, or you need some advice for your business regarding TU relationships, or any kind of employment law, please get in touch by emailing or call 0117 325 0526.

Specialist trade union training event –  8 June, Leigh Court, Bristol

For managers and HR professionals working in companies with trade unions, we are holding a ‘not-to-be-missed’ TU law event in June, that will bring you right up to date with all TU law changes, and give you plenty of practical advice on getting the best from your trade union relationship.

The event will take place at Leigh Court, Bristol, Thursday, June 8th from 9.30am – 1pm. Email if you’d like to receive an invitation to this exclusive event.

Blog: Trade Union Law Part 1 – The new changes explained and how they will affect your business

Manifesto promises and climb-downs?

There is something about the trade union movement that has always engendered strong feelings in this country (both for and against) and you don’t need to read the papers often to see how much interest there inevitably is in strike action (the junior doctors and Southern trains, being two very high profile and recent examples).

Latest figures from the Office for National Statistics show that the overall number of trade union members has increased by 36,000 to 6.49 million people in 2016. The figures also reveal that the number of trade union members in private sector employment has increased for the fifth consecutive year.  Particular sectors showing growth in trade union membership are transport, construction, logistics and communication.

The Conservative party made it an election manifesto promise that they would dismantle what it considered to be ‘disruptive and undemocratic strike action’. There probably isn’t much argument that they inherited the most employee/trade union friendly laws we have ever had in this country introduced by the successive Labour governments of the 90’s onwards.

Therefore, to follow up on their manifesto commitment, the government has introduced the Trade Union Act 2016. It actually came into force in a piecemeal fashion but the majority came into effect on 1 March 2017.  Depending on whose rhetoric you believe, this is either the ‘biggest shake-up of trade union law for 30 years’ or a ‘hugely reduced version of a supposed flagship piece of legislation.’

Trade Union Act 2016 – the key changes

Either way, there are changes and if you have a trade union relationship, you will want to be aware of them. These can be summarised as follows:

Legal strike action will be harder to achieve

1. It will now be much harder for a trade union to achieve a legal vote for strike action. Before 1 March 2017, a trade union wanting to take strike action would have to achieve a simple majority from its members who actually voted. A trade union will now have to show that at least 50% of those eligible to vote, did actually vote on the ballot. This is easier to explain with figures. Pre 1 March, say a manufacturing firm has 600 union members. In a ballot on industrial action – if only 100 members actually bothered to vote – then as long 51 voted in favour, there could be lawful strike action. Post 1 March, at least 300 members will now have to vote and in order to get a vote to support strike action, 151 of those would have to vote in favour (a simple majority).

2. It is going to be even harder for a trade union to achieve a legal vote for strike action in certain ‘key’ sectors. These are health, education for those under 17, fire, public transport, border security (and decommissioning of nuclear stations). Here the trade unionwill not only have to show that 50% of those eligible to vote did actually vote, BUT also that 40% of those eligible to vote did actually vote in favour. In my example above, here the trade union will have to show that at least 300 members voted AND that of them, at least 240 voted in favour.

The government’s argument for both changes, which do interfere with human rights around freedom of association, are that to have these minimum figures means that any legal strike action will have democratic support and legitimacy. Either way, there is no doubt that trade unions will have to work harder to ensure that as many members vote in future industrial action ballots and they will  surely be hoping that the government’s current consultation on the use of ‘e-balloting’, will make it much easier to engage a social media friendly workforce rather than the current old-fashioned postal vote system.

Fresh ballot required after 6 months

3. It will be harder for a trade union to hold the threat of strike action over an employer. Previously, provided that industrial action was started within four weeks of the ballot (or a longer period agreed by the union and employer which did not exceed eight weeks) there was nothing to prevent a union from suspending and restarting action in reliance on the original ballot, provided that it was the same industrial action.There was no fixed end point by which action ceased to be supported by the original ballot. The government has put an end to this and provided that the maximum amount of time during which a ballot stays ‘valid’, will now be 6 months. Once that has passed, if there is a still a dispute between the employer and employees, the trade union will have to ballot again (which as you can imagine is a time-consuming process and the employees might not be so willing to support further strike action six months down the line).

Tighter requirements for balloting and striking

4. The Trade Union Act 2016 contains further provisions concerning the identification of picket leaders during strike action, stricter information requirements for the ballot paper, and alterations to the checking off system for the collection of trade union dues.

But what about the use of agency workers?

In addition…the government promised that it would abolish what it described as the ‘nonsensical restriction’ law that currently says an employer is not allowed to use agency workers to replace staff who are on strike. As you can imagine, this does severely hamper what service an employer can provide if they are subject to strike action and does give more power to the trade union as it makes the strike that bit more effective. The government is still consulting on this point. The Trades Union Congress claims that this has been quietly kicked into the long grass. I am not so sure – so watch this space.

 

Get the most from your trade union relationships

Come and hear from the experts

Specialist trade union training event –  8 June, Leigh Court, Bristol

We think that that any business who works with a trade union can benefit from a positive working relationship and that the best way to do this is to fully understand the law that relates to trade unions, its effects and limitations. Our specialist team of trade union experts here at Menzies Law regularly advise organisations on trade union issues. We’re here to help give you the benefit of our experience. If you fancy a chat over a coffee please contact Luke Menzies (call 0117 325 0921 or ).

With this in mind, Menzies Law will be launching an invitation-only event, to take place on 8 June, for senior HR professionals, at which we will explore these areas in detail.  To register your interest in receiving an invitation to our exclusive event, please email Vikki Smith on .

 

Anne-Marie Boyle
Senior Solicitor

Blog: How to protect your difficult conversations – part 3

As you can tell, I do love a list.

Step by step guide to planning your difficult conversations

  1. First, you need to know what you are dealing with. Why do you want to speak with this employee? Is it because, for example:
    1. They have already brought a grievance/several grievances in the workplace?
    2. They have been making life difficult for colleagues in the workplace?
    3. You have performance concerns?
    4. You need to change something about their job/role function?

    (As they say, this is not an exhaustive list.)

  1. If you feel confident that you already have a ‘dispute’ between the business and the employee, then the ‘without prejudice route’ is probably best for you. This protects the actual contents of any discussion from disclosure, irrespective of any employment law claim the employee might bring. Remember also that you have to be trying to resolve the dispute.  If you are not sure that there is an actual dispute, give us a call and we’d be happy to talk it through. Obviously be sure to avoid any ‘unambiguous impropriety’ (see my Part 2 blog on this subject). When engaging with the employee it is best to start any conversation with ‘can we speak without prejudice?’ and make sure to follow up any conversation in writing with the words ‘without prejudice’ at the top. You may like to ask them to sign something which confirms they are happy to have a ‘without prejudice’ conversation.
  1. If you are more in the territory of 1(b) to (d) above, then you may want to consider the ‘pre-termination negotiations’ route as you are probably not in ‘dispute’ territory. I would probably sprinkle a bit of ‘without prejudice’ in there for good measure, though: remember there is no reason why you can’t use both regimes at the same time.
  1. Arrange to meet the employee. For most examples this should be planned with the employee knowing in advance that they are required to attend a meeting, albeit you don’t have to tell them in advance what the purpose of the meeting is. Consider offering the employee the right to be accompanied (see Part 2).
  1. At the meeting, explain your concerns and the employment processes that might need to be followed to address them (e.g. disciplinary, poor performance). Explain that, as an alternative, you would like to propose a settlement and exit package. I would always add here that you expect this conversation to remain confidential and inadmissible if the matter ever came to an Employment Tribunal. Also, I would always say that the conversation and whether it results in an agreed settlement negotiation will have not impact on any possible future disciplinary or performance management proceedings.
  1. Follow up the meeting by sending the employee the offered settlement terms. This can be in the form of a draft settlement agreement straight away or a more simple ‘heads of terms’ letter or email which simply summarises the key elements of the deal. My usual advice is to send a draft settlement agreement at this stage, as it sets your stall out clearly on issues that are always going to be much more important to the employer, such as termination date, confidentiality, return of company property and restrictive covenants: a letter often omits these and simply concentrates on the actual sums involved. I usually advise employers not to hand over a draft settlement agreement at the meeting. I concede that there will be a personal preference here – but I think it is more the impression it gives. I think it looks much better to say ‘Ok, well if that is something you are interested in, I can have a look at it and  come up with a draft’, rather than ‘here’s something I prepared earlier’.
  1. In the vast majority of cases, matters will swiftly proceed to an agreed exit. But do always be prepared with a Plan B. If you can’t reach an agreement on the terms of the settlement agreement, then consider what you will do next. Are you prepared to proceed with the disciplinary/poor performance process?  If not, you might need to look at the figures you are offering again.

I advise on difficult conversations every day of the week. So if you would like to chat one you are planning through, please give me a call.

Anne-Marie Boyle