Friday 29th June 2012 at 6:00am
Article 6 Fair trial standards and the employment courts
Article 6(1) ECHR provides that
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”
ECHR jurisprudence
An ordinary employment dispute comes within the definition of “civil rights” in article 6 irrespective of whether the employer is a private (Buchholz v the Federal Republic of Germany [1981] ECHR 2) or public body (Philis v Greece [1997] ECHR 34).
Article 6 protects the right to a “fair and public hearing”. This comprises rights to access to court, equality of arms, and a reasoned judgment.
The right of access to court must not only exist, it must also be effective. Where a prisoner was refused permission to contact his solicitor with a view to bringing a civil action for libel against a prison officer the refusal was a violation of Article 6 (Golder v the United Kingdom (1979-80) 1 EHRR 524, para 35). Where two protesters were denied access to legal aid to defend a complex libel case, this refusal violated their Article 6 rights (Steel and Morris v the United Kingdom [2005] ECHR 103)
In most cases, the right to a fair and public hearing includes the right to an actual hearing (Fischer v Austria [1995] ECHR 11 para 44), although not where the parties have agreed to proceed “on the papers”.
Decisions which determine civil rights may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which exercises “full jurisdiction” (Bryan v United Kingdom (1995) 21 EHRR 342). What amounts to “full jurisdiction” varies according to the nature of the decision being made., the subject matter of the decision and the quality of the initial decision.
The right to a fair hearing comprises a right of appeal (Delcourt v Belgium [1970] ECHR 1, para 25)
Article 6 protects the principle of equality of arms, a fair balance must be struck between the parties (De Haes and Gijsels v Belgium [1997] ECHR 7).
Article 6 comprises a right to a reasoned judgment. If a submission is fundamental to the outcome of the case the court must then specifically deal with it in its judgment (Van de Hurk v the Netherlands [1994] ECHR 14, para 61).
Article 6 protects the right to a hearing “within a reasonable time”. Whether that right has been unjustifiably impaired will depend on the complexity of the case, the conduct of the applicant, the conduct of the judicial and administrative authorities of the State, and what is at stake for the applicant (Buchholz).
Article 6 protects the right to a hearing by an “independent and impartial tribunal”. Where the judge who presided over a planning appeal had also participated in the parliamentary debate on the adopting of the development scheme, article 6 was violated (McGonnell v the United Kingdom [2000] ECHR 62).
Domestic article 6 cases
The majority of recent domestic employment cases on article 6 have concerned whether an employee is entitled to a fair and impartial hearing in circumstances where a dismissal threatens their long-term ability to practice their profession. After some to-ing and fro-ing, the final position appears to be that where an employee is threatened simply with dismissal, the employer is not determining the employee’s civil rights and article 6 fair hearing rights are not engaged (Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2012] EWCA Civ 641)
Other domestic cases on article disclose the following principles: a hearing where the tribunal had decided the case properly based on the evidence and correct application of the law will ordinarily be enough to satisfy the requirements of article 6 (Jackson v Walsall Metropolitan Borough Council EAT [2012] UKEAT 1247/10]).
The more serious an allegation or charge, the more astute the courts should be to ensure that the trial process is a fair one (Bonhoeffer v General Medical Council [2011] EWHC 1585).
A 7-month delay by an EAT in reaching its decision is not enough to deprive a litigant the substance of their right to a fair trial (British Gypsum Ltd v Thompson [2011] UKEAT 0115/11)
In national security proceedings, even the “gist” of closed material need not necessarily be disclosed in order to ensure a fair trial (Home Office v Tariq [2011] ICR 938, SC)
In Subner v United Kingdom the UK government recently conceded (i.e. the case was settled) that a Judicial Review (i.e. a judicial determination limited to a review function, with no capacity to determine the facts) is not a “full jurisdiction” hearing, i.e. is not adequate to hear complaints about the substance of professional regulatory panels. In future, appeals from these bodies to the High Court will be re-hearings.
Finally, a very recent decision of Elias LJ (albeit obiter) determined that an unfair dismissal hearing is in principle article 6-complaint, even where the Tribunal is required to follow the range of reasonable responses test:
“[Such a hearing] is not, therefore, a full re-hearing although it is more intrusive than classic judicial review. Given the existence of fair and detailed procedural safeguards at the initial level, coupled with a right to appeal, I consider that where available (and it may not be in all cases) a claim for unfair dismissal would suffice to constitute full jurisdiction complying with Article 6, notwithstanding that it does not allow findings of primary fact to be reviewed (Mattu, supra, at para 121).”
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Monday 25th June 2012 at 6:00am
ACAS conciliation: how not to draft employment law
There comes a moment every so often when you read something so bad, so incomprehensibly stupid, so perfectly ill-designed that it will cause no joy but misery to everybody it touches – and you have to shout “stop!”, in the hope that anyone is listening. I had that feeling on Friday when I began to read the Enterprise and Regulatory Reform Bill, and in particular its suggestions that in future ACAS conciliation will be mandatory before a Claimant can issue Tribunal proceedings.
For today, I’m not going to challenge the assumption that any such proposal is needed (that’s for another day) but simply the process by which ACAS conciliation is intended to interact with Tribunal proceedings.
It will work as follows:
Once the Bill has come into effect, a claimant will have (in most, but not quite all jurisdictions, as at present) 3 months to bring their claim
And the claimant will be unable to successfully issue their claim unless they serve at the same time a certificate from ACAS that the conciliation period is over.
The three month time limit will apply as follows:
i) The 3 months will excludes “day A”, which is “the day” that the claimant sends required information (the exact information is unspecified) to ACAS and it will start again the day after “day B”, which is “the day” when the claimant receives a certificate from ACAS that the conciliation period has ended
(The Bill is silent as to whether or when time is stopped where a claimant sends most, but not all, of the required information to ACAS, and then has to resubmit some or all of it, perhaps as many as another 2 to 3 times)
(It is silent also as to whether “the day” ends at 5pm or midnight, let us assume midnight – but you can tell now that there will be cases in which the maths will work out so that whether the case can be heard will depend precisely on whether a claimant, or ACAS, received a letter before or after midnight).
ii) The certificate should be issued after a “prescribed period” (but this is nowhere defined) ends, or after the ACAS officer had concluded there is no prospect of settlement
iii) In principle the relevant day when time starts to be counted again for the 3 months limitation period is the day after the day when the certificate is received but the schedule provides that there may be circumstances where time is deemed to restart before the certificate is actually received, and it doesn’t say what they are, but that these will be in separate regulations (my best guess is that the coalition intends time to restart after a phone call from ACAS saying “if you say that, ACAS can’t be involved further” or to restart after a phone call saying “the certificate is in the post”, but this would of course be unjust, as the claimant won’t actually be able to issue the claim until they actually have a certificate in hand, and the delay will be in every case days and in some cases weeks between being told a certificate is due and actually having it in hand)
iv) There are at present grounds (depending on what area of employment law is involved either “reasonable practicability” or “justice and equity”) on which a Claimant can extend the primary three month time limits. There is nothing in the Bill to suggest any thinking as to whether, or how, these are intended to apply to the above procedure. IE at the moment, a Tribunal can extend time in an unfair dismissal claim if it was not reasonably practicable to bring it within three months (eg because of illness) – in future, will that test only apply to the date at which the claim was issued, or will it apply to any previous delays (eg whether caused by the Claimant – maybe they have sent the wrong information to ACAS or maybe they were slow in sending the information to ACAS – or ACAS – who may have delayed unreasonably in issuing a certificate or who may have incorrectly refused to accept information sent in by a Claimant etc etc etc)?
To summarise, the three month time limit will look something like the following
- A claimant has 3 months to bring a claim
- PLUS “something” (the number of days from day A to day B, defined above, including both A and B in the calculation)
- MINUS “something else” (which will be the number of days between day C, undefined, but presumably the date when the Claimant ought to have known that a certificate was going to be issued, and day B)
- And if the Claimant is out of time they probably will be able to apply for an extension of time, but the legal basis as to whether the application should be granted is unclear
Simple, eh?
You would have hoped that it might have occurred to the drafters of the scheme that parties litigate all the time about time limits – even today’s much simpler (3 month) time limits – and that when they do so, the litigation is complex, costly, and antagonises all three of the Claimant (who feels the employer is using technicalities to frustrate their legitimate claim), the Respondent (who feels that they are being “pushed” by the system towards costly additional hearings, which even if they win at the Tribunal they very often lose on appeal, adding to the costs and duration of litigation) and the Judges (who have to resolve complex “satellite” litigation on topics far from the real merits of the case).
Ideally, it might also have occurred to them this scheme is even more horrendously complicated than the old, unlamented statutory dispute resolution procedures, which – it is now universally accepted – were a misery for claimants and respondents alike
Here’s the link to the Bill itself – the relevant parts are clause 7 and schedule 2, if you don’t believe me about quite how bad the legislation is.
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Friday 22nd June 2012 at 6:00am
Struck Out reviewed in NLJ
Author: David Renton
Publisher: Pluto Press (8 Mar 2012)
ISBN: 9780745332550 Price: £19.99
Reform of the tribunal system has never been more topical, and practitioners are acutely aware of the frustrations their clients frequently feel at all stages of the litigation process.
As its name indicates the book takes an unashamedly claimant-focused assessment of the employment justice system in England and Wales, starting with the foundation of tribunals, progressing through specific topics such as equal pay and agency workers, and, after a nod towards human rights law, and the unions, ends with a suggested handful of reforms.
A troublesome adolescent
Perhaps unconsciously, the author hits upon what appears to be the real issue in the next decade: what does the tribunal service want to be? As with any troublesome adolescent the answer is not clear. Does it want to be a court with all the formality and technicality that goes with it (the size of the Employment Law Handbook supports this line of development) or does the tribunal retain its informal roots and easy-access, costs-free ethos? The author proposes reform by way of compensation increases coupled with formality decreases. This rides two horses. One can see the validity in a claim that compensation could be increased for unfairly dismissed employees due to the arbitrary cap on the basic and compensatory award, though the other side of this coin is protection for employers by limiting total liability. However, his calls for removing the “just and equitable” touchstone and to apply contributory fault and failure to mitigate reductions only as alternatives to each other misunderstands the basis of quasi-contractual compensation in the tribunal system.
Deformalisation
Further, Mr Renton’s desire for deformalisation of the system in order to return it to its roots seem at odds with the justification for increasing compensation or more orders for re-employment (be it reinstatement or re-engagement). His proposals for the removal of employment judges and their replacement by a legally qualified clerk are also bound to be controversial and potentially expensive: the tribunal would be increased to four members all of whom are lay, but take their advice from the clerk in a manner akin to a magistrates court. This supports the general theme running through the book; employment tribunals have become too “juridified” and disputes were better resolved through collective bargaining and workplace dispute resolution procedures. This may be, but times have changed and are not likely to change back.
The author, we suspect, is in part deliberately provocative in his reasoning; he does not want his book to be seen as containing all the answers to the problems he identifies, but rather to encourage the debate. While his examples are necessarily extreme ones taken from the claimant’s point of view many of the failings in the system identified by him are equally troublesome for respondents.
To that end the book is an enlightening and stimulating read, and being pocket size is easy to carry around, for those long days sitting at tribunal waiting for your floating case management discussion to get called on…
Review by: Chris Bryden, 4 KBW & Michael Salter, Ely Place Chambers
New Law Journal, 15 June 2012
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Wednesday 20th June 2012 at 11:17am
Protected conversations: still a bully’s charter
Laurie Antsis has published on his blog a very thorough analyis of the provisions of the Enterprise and Regulatory Reform Bill which deal with protected conversations, and what follows should be read through the prism of Laurie’s piece, which very usefully reproduces the relevant passages of the Bill, which were only tabled yesterday.
I’ve already written about protected conversations, describing them as a bully’s charter, and I thought I should revisit that opinion now the draft clauses have been published.
To recap, protected conversations are the Coalition’s refinement of Adrian Beecroft’s proposal to take unfair dismissals for reason of capability out of the tribunal system, by enabling employers to settle them for, in Beecroft’s plan, a generous sum of money, but with no recourse to the Tribunal system afterwards.
The scheme, as now proposed, does not apply simply to capability dismissals but to all dismissals, and does not require the employer to make a generous offer, nor the employee to accept the employer’s offer, but simply prevents an employee from raising the fact of an offer with the Tribunal.
It is even a bit worse than that sounds, because while the employee wouldn’t be allowed to raise the fact that an offer had been made, the employer would be entitled to complain, in a costs application, that an offer had been turned down.
The wording of the section is as follows:
“(1) In determining any matter arising on a complaint under section 111 [i.e. an unfair dismissal claim], an employment tribunal may not take account of any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.”
“(2) Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.”
“(3) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.”
“(4) The reference in subsection (1) to a matter arising on a complaint under section 111 includes any question as to costs, except in relation to an offer made on the basis that the right to refer to it on any such question is reserved.”
“(5) Subsection (1) does not prevent the tribunal from taking account of a determination made in any other proceedings between the employer and the employee in which account was taken of an offer or discussions of the kind mentioned in that subsection.”
What litigation will focus on
Reading the above clauses, it seems pretty clear to me that there will be two main “tension points”.
First, is this a case where the limit on considering the protected conversation applies at all? In theory, the section draws a very neat distinction between cases which are ordinary unfair dismissals, leaving any other sort of case. But my hunch is that life itself will prove more complex. Take the familiar example of a dismissal which the Claimant complains was discriminatory: if the employer wants to hush up the fact of a “bad” protected conversation, will the employer make an application to have the discrimination claim struck out, ostensibly on some other grounds, but with a real motive of keeping the protected conversations out of the Tribunal’s view? Or, as Laurie points out, what about constructive dismissals? If a claimant sought damages for what was said at the protected conversation, the conversation would not be protected: but what if the Claimant had failed to include a claim for breach of damages in their ET1; would the conversation then be inadmissible?
Second, the prohibition on taking account of the protected conversation does not apply where a Tribunal considers anything improper was said or done, in which case the prohibition “applies only to the extent that the tribunal considers just.”
This gives the employer “two bites at the cherry”, both a defence that the conversation was not improper, and then a separate defence that it would be unjust for the Tribunal to consider a part of it.
While this provision is clearly supposed to protect against some of the scenarios set out in my previous post – e.g. where there was bullying conduct – the drafters of the legislation have tried to draw the line at a point which is as favourable to employers as could practically be acheived.
Looking back at my original post – and some of the examples I give there of the sorts of behaviour, by employers during a protected conversation, that a worker might want to raise at the Tribunal –
+ An unguarded remark by a manager which, if disclosed to the Tribunal, would indicate that the motives behind the dismissal had been unfair
+ A hopelessly premature settlement offer, indicating a premature decision to dismiss
The employer might well be able to keep these out of a subsequent Tribunal hearing on the basis that they were not “improper”
Or take another example – aggressive and bullying behaviour by a manager during a protected conversation
The sub-section allows improper behaviour to be revealed only “only to the extent that the tribunal considers just.”
To give (admittedly) a lurid example: the draft wording of the statute would have the effect that if a manager made an offer, and the worker said No, and the manager then (say) swung a fist at the worker; the employer could not escape the Tribunal considering the fist, but it might well not be required to consider the (probably more revealing) words that led up to the final confrontation.
In real life, of course, bullying isn’t usually about fists, so much as words and demeanour – but why should the employer have two chances at persuading a Tribunal to disregard its managers’ inappropriate behaviour?
The scheme, in short, is still a bully’s charter.
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Monday 18th June 2012 at 5:55am
Yunus Bakhsh v Northumberland Foundation Trust; testing the limits of the Tribunal’s inability to re-engage
Where a claimant succeeds in a claim for unfair dismissal and the employer is ordered by the Tribunal to re-engage or reinstate the claimant but fails to do so, a Tribunal has the power to order additional compensation of not less than 26 and not more than 52 weeks’ pay, but the Tribunal has no power to enforce the order of reinstatement (section 117 Employment Rights Act 1996).
If the employer is a public body, can the Claimant enforce the original order of re-engagement against them, by a claim for Judicial Review?
In a case concerning a former candidate for General Secretary of the nurses’ union UNISON, Yunus Bakhsh, whose reinstatement the employer refused, essentially on the basis that it feared he would use re-engagement to renew his trade union activities, the High Court has granted permission to the Claimant to bring his claim.
For non-lawyers, that doesn’t mean he has won his case, only that he has got over the first hurdle; there will now follow an ordinary High Court hearing for Judicial Review.
The interim view of Mr Justice Foskett was that a claim such as Bakhsh’s could only very exceptionally succeed. But one factor which troubled Foskett was the reason given by the employer for refusing re-engagement, which appeared to be a very plain infringement of Bakhsh’s freedom of association under article 11 ECHR.
Again for non-lawyers: Judicial Review is a limited remedy, all it means is that the public body has made an unlawful decision, it is then required to make a fresh decision. In some areas of JR it is wholly common for the decision maker to be successfully challenged and the decision overturned, only for the decision maker to take the same decision as before, if perhaps with better reasons, and the case to remain in the courts, clogging them up for some time, without reaching a final outcome.
That reservation aside, this case matters: if Bakhsh was to succeed then it would open up a hole in the wall of resistance facing Claimants who want nothing more than their job back.
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Friday 15th June 2012 at 6:00am
Reinstatement and re-engagement; revisited
Regular readers of this blog will be well aware of my longstanding complaint that Tribunals pay too little attention to the option of reinstatement but advance on the basis of a false assumption that reinstatement will always be an unrealistic solution.
It’s nice to find the senior employment judiciary in agreement. In last year’s case of King v Royal Bank of Canada Europe Ltd [2012] IRLR 280, HHJ Richardson referred a case back to the Tribunal where a bank worker’s redundancy dismissal was automatically unfair under the old statutory dispute resolution procedures (i.e. unfair because no fair procedure had been followed), but the Tribunal accepted there was no alternative decision and capped her award to two months’ wages.
Richardson J’s findings are set out in the IRLR’s headnote (emphasis added):
“The tribunal had not complied with the statutory requirement of the ERA 1996 s 112(2) Q [736] to explain to the claimant the possibility of reinstatement or re-engagement. This has always been a difficult point because of the monumental gap between the theory of the ‘primacy’ of these remedies and the year-on-year statistics that show that they are simply not awarded in practice. Normally it makes little difference if Homer nods vigorously at this point in proceedings. However, this case shows that a tribunal may still have to be careful, at least sometimes, because on the facts here the claimant had actually mentioned reinstatement in her ET1 and had referred to re-engagement in her witness statement. In those circumstances at least it remains an error of law not to comply with s 112(2). Indeed the judgment (at para 55) goes further and states that ‘compliance with s 112 is a valuable discipline for the purpose of ensuring that important issues relating to reinstatement and re-engagement are not overlooked’, though it must also be pointed out that the judge did acknowledge that under the older authority of Cowley v Manson Timber Ltd [1995] IRLR 153, CA it is not automatically an error of law for a tribunal not to comply with the section; given that tribunal procedure is supposed to be being simplified, to add a requirement of active consideration of remedies that normally no-one wants could be seen to be regressive. However, this decision does place more emphasis back on the section, at least where there is some mention of these remedies by the claimant (though of course there is then always the cynical argument that that mention may only have been to up the ante for a financial settlement); the balance here is notoriously difficult.”
In a week where the Coalition has been setting out new powers for employers to railroad employees through very one-sided “compromise agreements” the case is also of interest for the dim view Richardson took of the Respondent’s procedure for dismissing staff, which had consisted of (i) inviting the employee to a meeting, (ii) explaining that they were going, (iii) putting them on immediate garden leave, (iv) providing no appeal and (v) offering a financial settlement by way of a compromise agreement. Such a procedure, Richardson J stated, was likely to lead to hasty and ill-considered managerial decisions and to be a complete dereliction of an employer’s duty under statute and good practice, all the more unacceptable in a large organisation with professional management, including an HR department.
And speaking of HR departments, it will be noted that within the Coalition’s plans for introducing statutory penalties for employers who breach employment law, there is a proposal that these quasi-aggravated damages will apply in circumstances including where the employer has “a dedicated HR team“.
It is at least hoped that that reform, combined with decisions such as the one above in King, remind personnel managers that their presence is supposed to result in more, not less, compliance with minimal employment standards.
Hat tip to Paul Ratcliffe
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Wednesday 13th June 2012 at 6:00am
Beecroft: how an ill-spent £150k is going to make life worse for every worker
The Enterprise and Regulatory Reform Bill, which will in due course become an unfortunately-titled Enterprise and Regulatory Reform Act (“Erra”) has now had its second reading in Parliament. The pre-publicity in the Sun and Guardian, among others, make it clear that the Coalition sees its central contribution as “protected conversations”, i.e. a new power under which employers could offer to settle unfair dismissal claims with a worker before they were sacked, and these conversations would be “protected” (i.e. a Tribunal could not be told what was said in them).
Employment Relations Minister Norman Lamb is quoted on the Cabinet Office website justifying the measure:
“There are inevitably occasions when the employment relationship doesn’t work out. Employers have to feel confident in dealing with situations such as where an employee isn’t pulling their weight or where someone is unreliable or even guilty of misconduct. In these instances it is sometimes in the best interests of both employee and employer to end the relationship speedily by reaching a settlement. An employee leaving by agreement can do so with their dignity intact. The employer secures peace of mind knowing that they will not face expensive tribunal proceedings”.
You will notice the circumstances where this is supposed to help: two of the three examples (“isn’t pulling their weight” … “unreliable”) given by Lamb, are what employment lawyers would deem “capability” dismissals. In practice, these are usually dismissals involving workers who are off on long term sick leave, although they can also involve cases where a worker needs training on appointment or on promotion (and training is withheld) or where a worker lacks the skills on appointment, and it is simply unclear whether they will be able to match up to the new role in time. When these cases make it to the Tribunal the central question is whether the worker was given enough time, or to put it the other way around, where the employer rushed unduly before dismissing.
The justification of protected conversations is that where the employer uses them to settle a case, both sides are content and a costly legal battle is avoided. The problem, obviously, is what happens when the employer tried a “protected conversation” and the case does not settle.
The “protected conversation” is inevitably relevant to whether a decision to dismiss was taken too soon. Just to give an example that will be familiar to all employment lawyers: a worker has an accident at work. Their prospects of returning are initially unclear but it becomes apparent that they will not be able to return to their old duties. After three months the employer makes a referral to Occupational Health and after six months the worker is dismissed. On these facts, pretty clearly, the worker has a potential (albeit not necessarily strong) claim for unfair dismissal.
Now add in the protected conversation to the above facts: if it took place the day after the accident, then (almost irrespective of what was said) it would indicate that the employer had immediately, and prematurely, given up on the possibility of the worker returning. Or, if the conversation took place after 3 months, but the tone was bullying and hectoring; or if the employer said clearly, we like you as a worker, but we’re simply not prepared to pay the costs that it might involve to keep you on, that too would be intensely relevant to the fairness of a dismissal.
While “protected conversations” are meant to make life easier for employers and harder for workers, they conflict with the fair hearing principles enshrined in the common law, article 6, and the Tribunal’s overriding objective. Just saying “these conversations are protected” won’t keep them out of the Tribunal system, but will lead inevitably to satellite litigation about when they can – or must – be disclosed.
The Coalition has already indicated a certain recognition of the problems by saying protected conversations will not apply to discriminatory dismissals.
So, given that “protected conversations” are a bad idea, why are they being introduced? The short answer is that they date back to the Beecroft report.
But why was Adrian Beecroft so keen on tackling capability dismissals in particular? The Daily Telegraph which has been reporting Beecroft assiduously has interviewed the venture capitalist and asked him why he was so keen on “reforming” employment law.
It is a fair question – Beecroft is an owner of a series of large businesses include the online pawnbroker Wonga.com, and a generous donor to the Conservative Party but has no previous history of interest in employment law.
Beecroft answers by explaining that during the course of his life as an employer he once had to deal with a single personnel manager who knew lots of law but had poor interpersonal skills. The manager was dismissed and sued for ordinary unfair dismissal and sex discrimination (the advert stressed that his replacement should have strong interpersonal skills, which the manager interpreted as an implied desire to recruit a woman to the new post). Beecroft settled the case out of court for £150k.
The following thoughts may have occurred to readers of this blog:
i) The claim in question was a discrimination claim; but the government is saying that protected conversations will not apply to discrimination claims. So to protect against one “evil”, employers are being giving a remedy which would not apply if the same case was to happen again
ii) The manager’s sex discrimination claims sounds tenuous in the extreme
iii) The award of £150,000 is 30 times more than the average award for unfair dismissal; some of this will be because the manager was well paid, but given that the cap for ordinary unfair dismissal would probably have been c£60-65k at the time of the dismissal, it looks like Beecroft settled the case for at least twice what it could possibly have been worth.
iv) Who was advising Beecroft?
v) If one worker succeeded in negotiating a very generous departure package good luck to them, but this case was in almost every important respect unlike 99% of Tribunal claims. Why should millions of workers have to suffer because of Beecroft’s failure to robustly defend a single claim?
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Monday 11th June 2012 at 5:50am
How much is your race claim worth?
I recently was loaned the employment law cuttings of the Institute of Race Relations (IRR) for the period from Jan 2009 – Feb 2011. Going through them, I thought it might be interesting to list just about every case in them, by the value of the total award.
Amounts of award
(Listed by total amount, not re-adjusted for inflation)
£140,000 at Ashford ET (£81,740 for “racial + other discrimination”, but prob UD, and £25,473 for “PI”, but prob Vento), including being referred to by colleagues speaking of “bloody foreigners” and having her accent taped, played back and mocked
Daily Mail, 21 March 2011
£115,000 (not broken down) for senior nurse who asked after promotion and was told she was the “wrong colour and wrong culture”
BBC News, 19 January 2010
£111,169 (not broken down) after manager told she did not fit in, was forced to eat on her own, denied holidays, and given extra duties because of race
Telegraph, 6 April 2009
£65,000 (including psychiatric injury, future loss of earnings and lost pension rights) after senior black immigration worker was selected for redundancy and white workers were not selected
Workplacelaw.net, 8 June 2009
£53,596 (not broken down) after supervisor told him “The Serbs were just right to rape your women and children” and “See that Croatian fella, he left his wife and 18 kids and came here on the back of a lorry”, and took his name off time sheets
BBC News, 23 April 2010
£36,000 (not broken down) after manager told her “You are only a nigger, what do you know?” and company tried to resolve her discrimination grievance by offering a 15p per hour pay rise
Personnel Today, 14 December 2009
£22,000 (£18,500 plus aggravated and interest) after Navy officer was introduced to colleagues as “Andy, aka Robert Mugabe”, “Vote Mugabe” stickers were placed on walls, and he was punched by an officer
Bexley Times, 13 January 2010
£13,000 (not broken down) after firm boss called dish washer “stinking” in front of other customers
Belfast Telegraph, 28 June 2010
£7,000 (not broken down) after business owner told customer, “Don’t you think she stinks? It must be in the blood, ‘cos them foreigners eat all sorts of crap”
Belfast Telegraph, 7 July 2010
£6,570 for injury to feelings after fellow worker told her “Why don’t you go back home? Don’t you have supermarkets in Spain”
Denbighshire Visitor, 22 January 2009
£4,000 for injury to feelings after teacher was subject to racist bullying by pupils
Lancashire Telegraph, 25 March 2009
As will be obvious to any lawyers reading this, the above list should be read with considerable, caution. Generally, what is reported is the size of the total award not the breakdown of the award between Vento and non-Vento damages (which is, of course, what would be most interesting to lawyers), moreover, as in the award at the top of the list, when journalists start describing an ET award as being for “personal injury”, you can infer that they have the essentials of the story wrong.
There is also the standard problem of how cases get selected or self-selected for press coverage. It will be noted for example that the above are almost all in advance of the median award for race discrimination which in 2010-2011 was £6,277.
Thanks to the IRR for the cuttings.
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Wednesday 6th June 2012 at 6:00am
As recommended by Bookmarks bookshop
This week’s top five books, as chosen by Bookmarks, the socialist Bookshop
1 Struck Out by David Renton
2 When the Clyde Ran Red by Maggie Craig
3 Public Services on the Brink, edited by Jenny Manson
4 London Recruits: The Secret War Against Apartheid, edited by Ken Keable
5 In Praise of Love by Alain Badiou
(Originally published here, 2 June 2012)
A bit OTT, but much appreciated all the same!
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Monday 4th June 2012 at 6:00am
More speaking events for Struck Out
It has been a lot of fun touring round the country (well mainly London, but with a bit of Manchester and Portsmouth thrown in) spreading the message of Struck Out. I’m delighted to say that I have more bookings lined up:
12 June, Haringey Trades Council
23 June, Unite the Resistance (with Dave Smith)
7 July, 11.45, Marxism 2012 festival (with Dave Smith)
14 July, Tolpuddle Festival (with Dave Smith)
17 July, Westminster Kingsway UCU
18 July, Hackney TUC
Anyone coming to any of the above should feel free to bring plenty of dispirin (my throat is going a bit) and maybe some energy drinks (hence the photo).
And if anyone is interested in booking me for movement events, especially from the autumn, please just drop me a line at davidkrenton[at]gmail.com.
