Monday 29th April 2013 at 1:23pm
Employment Law in the Midst of the Deluge
What is the point of employment law? Should you try to work out an answer to the question through the changes which the Coalition government has been making in 2012 and 2013, the first thing you would conclude is that the law exists to rewrite industrial relations to the benefit of employers at the expense of workers.
No “reform” illustrates this better than the changes which are being made to dismissal procedures, starting from this summer, to prevent a tribunal from enquiring about the conversations between employer and employee in the run-up to dismissal. Where an employer proposes that an employee should consent to their own dismissal, this will be deemed a “protected conversation”. If the negotiations break down and the employee maintains afterwards that the employer said something crucial to their dismissal that shines a bright light on the unfairness of all that followed and all that came before, the Tribunal will not be entitled to enquire what it was that the employer said. The proposal is in fact even worse than this makes it sound. The “protection” only operates in one direction. Should the employer want to rely on his own words later – for example, because he made a cash offer to the worker, which the worker failed to beat in subsequent litigation – this will not be protected. The employer can tell the Tribunal, and the Tribunal could perfectly easily take this into account when deciding for example who should pay the costs of the litigation.
Me for New Left Project. More here.
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Monday 2nd April 2012 at 7:00am
The Blacklisting litigation: initial results
Phase I of the blacklisting litigation, the focus of which has been the Employment Tribunal, is nearing an end. Around thirty blacklisted construction workers have brought claims, principally for unfair dismissal and failures to appoint. There have been roughly 40 or so Respondent companies.
The cases fit into three groups. The first group were issued shortly after the original Information Commissioner’s raid on the Consulting Association in February 2009. In autumn 2009 all blacklisting claims were joined before a single judge, Judge Brain, in Manchester. The result was a single, massive CMD in Manchester, with over 50 lawyers (and lay claimants) in a single room. Cases in this group had already been subject to case management. The result was that by the time they came before Judge Brain, there was little for him to do, and these cases were returned to the Tribunals where they had been issued. The standout decision concerned an steel erector Phil Willis, who was found by Ashford ET to have been unlawfully refused employment on grounds of union membership. Willis was awarded £18,375 compensation, including £2,000 for aggravated damages
The second group of cases escaped Manchester ET. Within this group, the standout decision is Smith v Carillion Plc and ors, which has been heavily reported in the popular press, including in the Mirror (here and here), Guardian and Observer. This case is still making its way through the courts, the employers having won at first instance; but further steps are anticipated.
The third group of cases remained in Manchester (the majority were indeed heard by Judge Brain himself); and in almost all of these Tribunal refused jurisdiction to proceed with the claims, essentially because the claimants had delayed on receipt of their Consulting Association files, for periods of between 6 and 13 weeks, before issuing claims. Three of these cases ended up in the EAT: Cullinane v Balfour Beatty Engineering Services Ltd & Anor, Nolan v Balfour Beatty Engineering Services, and Balfour Beatty Engineering Services v Allen.
Legally, the cases in this group cover well-trod ground: they remind us that where a claim is brought of time, the Tribunal must inquire whether the claimant acted reasonably in delaying. A Tribunal claimant, bringing their claim on the basis of newly-acquired information, does not have the benefit of a fresh 3 months, but will have to justify every week and every day they delay before issuing. Certainly, if the fault in delaying is that of the claimant’s solicitor (and, it is very clear from these decisions, that many solicitors, both Claimant and Respondent had missed the time point) that will not assist the claimant.
Interestingly, although all these cases involved blacklisting, they generated very little publicity: the papers presumably taking a view that if they made any law, that was law very specifically tied to the time limits issues.
When non-lawyers read about the blacklisting claims, their first question is invariably – how have the companies got away with it so far? (The Phil Willis stands out as one of a very small number of unequivocal victories) There is no real doubt that the practice of holding data about workers because of their trade union activities is unlawful. But its illegality can only give rise to an employment claim if there is an employment law right in which it can be grounded.
It may well be that the cases go on to facilitate the development of human rights law. But, if so, the breakthrough remains to be made.
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Thursday 8th March 2012 at 10:00am
How does employment law compare?
In common with many employment barristers, I do not have a solely employment law practice. I spend around 70% of my time in the county court, and only 30% or less at the ET. In some ways, I see employment law from the outside. There are many things I love about employment law, and there are some which leave me dissatisfied.
I thought it might be useful if I jotted down some personal dislikes. It should be noted that this is a purely idiosyncratic list, and should be taken with a heavy pinch of salt:
1. A culture of combat
The purpose of the Employment Tribunal is to resolve workplace disputes. The Tribunal’s authority to do this is provided by its combination of knowledge (it is a specialist court, with specialist judges and lay members chosen because of their experience of industrial relations from the employee or the employer’s perspective) and independence (its members have no interest in the dispute between the parties). By taking conflicts out of the workplace and suspending them in mid-air, the involvement of the parties is changed. On both sides, the lawyers to whom the case is passed are engaged in a legal battle which is an altered form of the original struggle between worker and employer.
Some Tribunal representatives (and because I predominantly represent Claimants, the difficulty I encounter is overwhelmingly with Respondent representatives), internalise their client’s position, and express their affront that anyone could possibly sue their company, the company being otherwise universally acknowledged as a paragon of all conceivable virtue.
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2. Unnecessary legal complexity
I describe this in my book in the following terms: ‘Tribunals are supposed to be simple courts. The 1968 Report of the Donovan Commission, from which the modern Tribunal system dates, announced that the Tribunals would be “easily accessible, informal, speedy and inexpensive.” Tribunals, in the words of another 1973 account, “are cheap; they are geographically convenient to use; they are open to all litigants, in person or represented as they wish; and their procedures are specifically designed to be used, with help readily available if he requires it, by the man in the street.” Yet many litigants find Tribunals closed and off-putting places. Even before starting a claim, the forms are hard to comprehend, and the rules regarding the time-limits by which a claim must be submitted are unforgiving. The language of the court is highly formal. The procedure of Tribunals is fixed. Parties address the court in a fixed order. Factual submissions are made before legal submissions. To be most effective in putting their case, even an unrepresented claimant will be expected to copy some of the mannerisms of an experienced barrister addressing a higher court.’
As a representative, I find a very great contrast between the culture of the county court and the ET. The former are much more practical and speedy. Legal points arise, but are not made merely for their own sake. A relatively high proportion of what is done can be done by agreement. The calibre of the Judges appears to be generally high. A friend who used to be an employment specialist but now only practises occasionally in the ET recently complained to me about what it was like taking up returning to the ET after a break – he had to remind himself of much law, more than he would have faced if coming to a housing, family or PI case after a similar break.
There is no equivalent in housing or family law of the equal pay case-law in employment: where Respondents have been allowed to take legal points of increasing complexity, in a spirit which lawyers will admit (off duty) as being all about “taking every bad point you can”, i.e. running every possible argument, so as to drag out litigation and make it prohibitively expensive for workers to sue on rights which in theory are protected by statute.
3. A culture of suspiciousness leading to misguided credibility decisions
I recall a case which the lawyers on both sides managed to simplify down to a single decision of fact: had a worker been offered alternative employment prior to dismissal? If they had, the claimant accepted he had no claim. But, he said, he had never been offered the job. The respondent had prepared a job description, but the email trail was unclear as to whether the job offer had ever been communicated to the worker. In the course of evidence, the respondent’s witness admitted – after a careful study of the documents – that they showed that the job had not been offered. Thereafter the respondent’s representative did not even put to the claimant in cross-examination the suggestion (which his own witness had withdrawn) that the job offer had been communicated to the claimant. At the end of the case, the Tribunal found on the balance of probabilities that the job offer had been made.
A reason, it seemed, for the Tribunal’s findings, was that the panel had seen in the bundle other documents relating to a separate PI case involving the same parties, in which a doctor instructed by the employer said that the claimant had exaggerated an injury. The doctor from the PI claim was not a witness to the ET claim. The ET inferred from a report produced for separate litigation that the claimant was a liar, and they used this to make findings which contradicted every actual piece of evidence they heard.
I give this example of one of the easiest way a Tribunal can make a decision, which is to make findings as to “credibility” (i.e. that a particular witness is a liar).
This kind of decision making is pernicious, for all sorts of reasons. It produces “loaded” results – because employers have vastly more resource to properly prepare their claims, they are far less likely to have to attend the ET with statements contradicting the case papers.
It is unamenable to appeal (because appellate courts do not hear the witnesses, they have to take credibility findings on trust.
It is also something particular to employment – as opposed to family or housing. In neighbour or parent disputes the courts have to start from the assumption that both parties are gilding the lily (because experience teaches that usually both are). The courts don’t get distracted by relatively small lies relating to irrelevant matters. If someone gets caught lying, but the lie is irrelevant, the lie is ignored. Judges are more sceptical about both parties; and as a result the general standard of the decisions they make is higher.
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