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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Wednesday 25th April 2012 at 6:00am
“Protected conversations”: a bully’s charter
Part of the government’s call for evidence on compensated no-fault dismissals also deals with the latest wheeze to come out from the Department of Business, Innovation and Skills, which is to introduce what the government is terming “protected conversations”.
In the words of the latest consultation document, “We will consult later in the year on introducing a system of ‘protected conversations’, with the aim of enabling employers to more confidently raise issues such as poor performance in an open way, free from the worry it will be used as evidence in a subsequent tribunal claim”
The rationale goes something like this. It is presently common, in workplaces where a union is recognised, for an employer who is in the process of dismissing a worker to invite in the worker’s union representative for an informal and off-the-record (in lawyers’ speak “privileged”) meeting. At the meeting, the employer may make a settlement offer to the worker, sometimes a generous offer, which (if accepted) cuts off the possibility of a protracted dispute, saving both sides emotional distress and money.
The conversation has to be off-the-record because otherwise it might unfairly prejudice a party making an interim concession for the purposes of settlement only. EG an employer might say “for today, I’m willing to consider that the dismissal is unfair, in order to work out how much it might be worth to the worker, and so that I make a credible offer.” That doesn’t mean the employer actually thinks the dismissal is unfair, and if the worker was able to rely on that concession in later proceedings, you would simply never get any settlement at all.
Why not, the government suggests, introduce a similar process to benefit workers who aren’t represented, either by unions or solicitors?
The problems with the proposal are legion. Here I’ll focus on three:
1. The reason why protected conversations work between representatives is that (usually) neither side has an emotional engagement in the conversation. If you had the conversations directly between a worker and a dismissing manager, at around the time of dismissal, the worker would be constantly saying “I don’t want to be sacked” and the manager would be justifying the dismissal. IE save in the most unusual case, people wouldn’t focus on the merits or otherwise of settlement, but simply on the original decision. So “protected conversations” won’t get the benefit that’s intended for them.
2. One reason why the present system works is that there are safeguards built in for the worker. If the outcome of the conversation is an offer of settlement, that isn’t the end of the process. The worker also has the protection, before settlement is finalised, of advice from an independent representative. They may be a trade union rep, although usually it’s a solicitor and many solicitors use this process to genuinely interrogate the settlement offer.
At the same time as introducing protected conversations, the coalition is also contemplating allowing employer’s personnel departments to sign off settlement agreements on behalf of workers. IE the employer would formulate a settlement proposal, and the employer would decide whether it was a fair offer. This process is unbalanced, and very clearly opens up the possibility of protracted legal disputes – as soon as the worker gets to see an advisor of their own, and the advisor says to them: “you do know that the claim you settled for £500 was worth ten times that?”
3. One of the reasons the current system works is that – on the employer’s side – generally the negotiator isn’t the manager who took the original decision to dismiss, etc.
The government’s proposal is to push back “privilege” to an earlier stage: as the quote above from the BIS illustrates, the conversations they have in mind would be ones long predating a dismissal.
Experience of life teaches that employers generally support their own dismissal decisions, and generally react with unease (and sometimes anger) when they are challenged. This is one reason why claimant lawyers dislike unrepresented Respondents at least as much as respondent lawyers dislike unrepresented Claimants (or if anything slightly more). Owners of small companies fight over every penny and often have real difficulty granting legitimacy to workers who sue them (even when, from the perspective of lawyers or the courts, the workers are obviously right to do so).
Protecting dismissal-related conversations directly between the employer and the worker will mean that the worker will not be able to tell the Tribunal what was said to them during their dismissal. IE rather than protecting genuine settlement discussions; it will simply mean that the Tribunal can’t know what the worker was told when they began to challenge their dismissal.
In all sorts of routine circumstances – eg a standard misconduct dismissal – it may be that the employer will have said something that is genuinely prejudicial to their case. EG the worker asks “You’re telling me you think I had a fight with Harry, and we both punched each other. So why are you sacking me, but not Harry?” The Tribunal may genuinely want to know the employer’s original, unguarded answer. If the answer was given during a protected conversation however, the Tribunal could not be told.
But the worst of it would be if the employer blustered during the conversation, or became aggressive, or (as happens depressingly often) tried to bully the employee into resignation (perhaps because the employer did not understand that a worker who resigns can still, potentially, bring an unfair dismissal claim). Why shouldn’t a worker be able to bring this conduct, if it was oppressive, and if it casts light on the dismissal, to the attention of the Tribunal?
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Monday 9th April 2012 at 7:00am
Man bites dog; journalist gets employment law wrong
In my book, I give various examples of press stories about Tribunals which a moment’s checking would have shown to be predominantly false:
• a personnel magazine’s prediction that swine flu would lead to a sharp increase in Tribunal health and safety claims (but the ET doesn’t have the jurisdiction to hear health and safety cases)
• a business confederation’s survey finding that Labour’s employment law changes had cost business £73 billion altogether (including nearly £500 million for “reforms” to sex discrimination law, which had barely changed the law at all)
• stories in years when the total number of Tribunal claims has fallen, focusing on specific jurisdictions where the number of claims has risen, chosen to give the false impression that total claims are rising
To this august company can be added the sub-editor who provided the title to Louisa Peacock’s article in Friday’s Daily Telegraph ‘Discrimination claims expected to soar in 2012’.
The piece says, in summary, that there will be more discrimination claims in 2012 because of changes taking effect on 6 April 2012 increasing the period of continuous service an employee needs to bring a claim from one year to two. Discrimination claims have no minimum service requirement, so some of the missing unfair dismissal claims will be repackaged as discrimination claims. For that reason, we should expect more discrimination claims in 2012.
Now, the real news here is clearly that the government is making changes to employment law, through regulations rather than legislation (i.e. with minimal parliamentary scrutiny) which will reduce the total number of Tribunal claims. Only in that Pravda-in-reverse world where all claims by workers are inherently wrong could it make sense to translate the reality that total claims will fall sharply into the Telegraph-speak of: but (*cough* – affects tone of moral outrage) a minority of claims will still be heard.
The other, more specific, stupidity is this: the changes to unfair dismissal law take effect only for employees starting after 6 April 2012. IE a worker recruited on 5 April 2012, will still be able to bring an unfair dismissal claim if sacked after 5 April 2013, because they will only require a year’s continuous employment in order to bring their claim.
IE, if the changes to unfair dismissal are going to have an effect – and particularly if they are going to have more of an effect that the Telegraph seems to think possible – the first possible date at which this will kick in will be 6 April 2013, and probably the effects will not be significant until winter 2013-4 at the earliest.
The changes to the unfair dismissal qualification period could not have an effect on the number of discrimination claims in 2012.
The very nicest thing you can say about the headline is that it does a poor job of explaining the law to the readers of that newspaper.
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Thursday 15th March 2012 at 1:50pm
Agency workers: when all the contractual documents are missing
In my book, I criticise the decision of Elias LJ in James v London Borough of Greenwich [2007] IRLR 168, which provides that (where there are documents exclusing employee status) an agency worker is not an employee of the end user, and that a Tribunal should imply a contract of employment only where it is “necessary” to do so. The practical effect of this decision has been that in almost every appellate case since James, the EAT (or the CA) has held that the claimant was not an employee of the end-user.
One case which does not feature in my book is the subsequent decision of Elias LJ (on his promotion to the Court of Appeal) in Tilson v Alstom Transport [2010] IRLR [2011] 169.
When Tilson came out, I did not think it significantly developed the James principles, but I have since heard it argued that I was wrong.
The case where this came up was one in which, unusually, there was no written contract between the agency worker and the end-user, neither was there any written contract between the end-user and the agency itself. The Tribunal was forced to choose between the oral evidence of the claimant that he was employed like any other directly-employed worker, and the evidence of the company, that in general they tried to draft contracts to exclude this possibility.
The Respondent relied on Tilson to say that in such cases there is a presumption against a finding of employee status.
The first point to note about Tilson is its unusual facts: it concerns an agency worker who was engaged on like terms to directly-employed counterparts (paras 3-4) and was offered, but refused, a direct contract with the end-user (para 5). Mr Tilson worked for the end user via two intermediary contracts and there was no contract save for a verbal contract between him and the end-user (para 12), but the contracts between Tilson and the intermediary companies were in writing, and very clearly provided that Alstom was not Tilson’s employee.
At the end of the case, Elias LJ found that Mr Tilson was not an employee. The clearest evidence against, he held, was that Mr Tilson had been offered direct employment and had turned it down (paras 50-1). He did not want to be an employee.
I was somewhat surprised, to say the least, to find Tilson being used outside its narrow facts.
My surprise was for three reasons:
1) The use of Tilson as a general authority covering all cases where the agency-agency worker contract is missing contradicts part of the policy rationale of James (which is that agency worker contracts should be upheld because of the general policy of the courts not to question written contracts) – cf James para 57 (“The express contracts themselves both explain and are consistent with the nature of the relationship and no further implied contract is justified.”), and also para 37, which deals with circumstances where there is not effective agreement (“It may be that the parties intend to regulate or alter their relationship in accordance with the agency contracts but do not in fact do so. In such circumstances, a tribunal will be entitled to find that there is a contract between worker and end-user”).
2) Nowhere is it said expressly in Tilson that agency worker arrangements should be upheld even where none of them are in writing (and in Tilson, the majority of the arrangements were in writing, all that was missing was a written document between Mr Tilson and the first of the intermediary companies).
3) It is very clear from Tilson that the case was decided on different grounds – the key to the case is not the partially missing documentation – but the worker’s signal desire not to be an employee.
But I do invite comments from any colleagues who read this blog; have I misunderstood Tilson, is it more important than I thought?
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Tuesday 21st February 2012 at 11:06am
Wrong to suspend?
A very interesting decision of Elias LJ last week in Crawford & Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138.
Most of this is a conventional unfair dismissal appeal, concerning experienced health care workers with a long service record who were accused of misconduct because of the way that had dealt with an elderly patient, who suffered from dementia and who the workers had some difficulty in restraining. There are comments of little general significance concerning the range of reasonable responses test.
The much more interesting parts of the decision are paras 71-3, which I reproduce in full in speech marks at the end of this post. Elias LJ, who has been an increasingly liberal judge ever since his decision in James v Greenwich Council [2007] IRLR 168, comments on the increasing tendency for employers to turn to the police in matters of ordinary misconduct.
He says that the employers are turning the police too often, and without cause. He suggests that when employers do this it causes them to suspend the employees concerned, again without good cause. And he suggests that suspensions of these sort bind employers to dismissal decisions, which lead to unfair investigations, and unfair dismissals.
I imagine these passages will be used by claimant representatives in many misconduct cases to come.
“71. This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council [2000] IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.”
“72. I am not suggesting that the decision to suspend in this case was a knee jerk reaction. The evidence about it, such as we have, suggests that there was some consideration given to that issue. I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.”
“73. However, whatever the justification for the suspension, I confess that I do find it little short of astonishing that it could ever have been thought appropriate to refer this matter to the police. In my view it almost defies belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step. I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct. I do not think that requirement was satisfied here. No-one suggested that the appellants were acting other than in the best interests of JE and the other patients. The restriction was not essentially different to the physical restraint which had been carried out in the day shift. I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter. But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.“
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Wednesday 15th February 2012 at 11:09am
6 April 2012 – remember that date
The draft Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 has now been published and will come into effect on 6 April 2012.
At the moment, if an employee wants to bring a claim for unfair dismissal, ordinarily, he or she is required to have worked for their employer for at least one year. Without that qualifying service, their claim will be struck out.
For workers whose employment begins on or after 6 April 2012, the qualifying period needed to claim this right will be extended to two years.
For workers whose employment began before 6 April 2012, the qualifying period will remain one year.
At any time, roughly one in eight workers have more than a year but less than two years’ service.
When the Tribunal system was first established, the qualification period for unfair dismissal was six months. This was increased twice under the Conservative governments of the 1980s before being reduced to its present figure (12 months) in 1999, partly in response to a decision of the House of Lords in R v Secretary of State for Employment, ex p Seymour-Smith that a two year qualifying period indirectly discriminated against women who were less likely to have accrued lengthy service.
The justification for the new rules is blunt: simply, if fewer employees qualify for unfair dismissal rights, there will just be fewer claims.
Supporters of a longer qualifying period argue that in the ten years since the qualifying period was reduced to one year (i.e. from 1999-2009) the number of Tribunal cases increased by 64%. More cases have come to the Tribunal, causing the taxpayer expense.
Against that it must be noted that in the preceding ten years (1989-1999) the number of Tribunal cases had grown by an even larger amount, 210 percent, suggesting that the processes driving the increasing use of litigation by workers go deeper than this tweaking of the rules.
The reason why there are now so many Tribunal claims is that litigation fills a space left by the partial decline of industrial bargaining, and also created by the lack of independence of workplace dispute resolution procedures, so that someone who has a genuine grievance about their work increasingly has no option but to claim. That need will continue, even after the qualification period has been extended.
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Thursday 1st December 2011 at 10:46am
What about the workers?
Over the last twelve months the Coalition government has been developing its plans for law in general and Employment Tribunals in particular.
First of all, it plans to reduce the public’s entitlement to legal aid. Many cases which get legal aid now will not from autumn 2012 (for example non-asylum immigration cases, most custody disputes after relationships break down, and most claims by tenants for housing disrepair). Civil legal aid will be restricted to the very poorest. And claimants will only get legal aid by applying through a call-centre rather than by speaking to a solicitor directly (there is no purpose to the call-centre other than to give claimants an additional hoop to jump through, the government’s hope being that most people will give up rather than push on with their claim).
Second, the government intends to reduce the number of personal injury claims, including claims for injuries at work, by making it much harder to fund these fees through no-win no-fee arrangements. In future, the claimant lawyer’s “success fee” will have to come from their own side’s damages rather than at present from the losing party. This change will make it harder for people to take their cases to court, as, in most injury claims, the potential awards are relatively modest while the lawyers’ fees are relatively high (Fees are high incidentally, not because lawyers are the fat cats that the press makes out, but because if you sue a large company it will use every device in its power to stay or defeat the case, and you cannot expect to win claims against rich defendants without spending many hours preparing them).
Third, the government will limit access to Employment Tribunals by requiring claimants to have been in employment for longer before they can bring a claim (two years for unfair dismissal, in contrast to the present one), by making it dramatically easier for employer’s to get costs when workers lose their case, and by introducing punitive “issuing” and “hearing” fees of around £1250 per claim.
The right to claim unfair dismissal was introduced in the Industrial Relations Act 1971 by Edward Heath, as part of legislation which attempted to prevent unofficial strikes by requiring the strikers to attend industrial courts. The idea inspiring the Tribunal system was that by taking individual disputes away from industrial bargaining, and making them the preserve of the courts, unions would be weakened. The present attacks on the Tribunal system only make sense if they are seen as the giving up of this long strategy in favour of a simple concentration on cuts at any cost.
The individuals who make it into the press reporting of Tribunal cases are usually wealthy individuals (bankers, sportsmen and women) bringing multi-million claims for discrimination. Claimants of this sort will not be inconvenienced by the government’s plans. But such claimants are untypical of the Tribunal system. Around three-fifths of all workers who bring cases succeed. The median award is only around £4,000.
The proposals will mean that tens of thousands of low-paid workers, the majority of them recently dismissed by their employer, and who have strong claims, will simply not bring them. Cost will be saved; but justice will not in any respect be served.
(This article was published in the December 2011 issue of Labour Briefing.)
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Tuesday 1st November 2011 at 10:49am
Tribunal of the boss
George Osborne used his speech to the Tory party conference to announce that in future employment tribunals will charge fees to hear claims. Under his proposals, claimants will have to pay £250 to issue a tribunal claim, and a further £1000 to have the claim heard. Employers defending a claim will pay nothing.
The proposed fee is punitive: it is around ten times more than it would cost to issue a similar claim in the county courts, on which the tribunals are modelled.
To understand the sheer malice of the announcement, it must be borne in mind that over a third of all tribunal claims in any year are claims for unpaid wages. Many involve employers simply refusing to pay their workers the wages that are owed to them. Around 70 percent of wages claims are won by the workers bringing them.
The ground was prepared with the help of a press campaign to the effect that most tribunal claims are vexatious (but around 60 percent of all claims, whether for wages, unfair dismissal or discrimination, succeed at a final hearing) and that the claimants are rogue former employees receiving pay-outs in several tens of thousands (the median award in dismissal claims is less than £5,000). Meanwhile, other proposals are anticipated to extend the time that an employee has to be in work before they can bring an unfair dismissal claim to two years, and to make it easier for companies to require unsuccessful claimants to pay the employer’s legal costs.
The tribunal system is far from perfect. Its over-reliance on litigation pushes power upwards in a union and away from the rank and file. Prospects are better when workers strike to prevent dismissals or discrimination.
That said, the proposals will reduce tribunal litigation on the bosses’ terms. Osborne’s message to employers is simple: don’t pay your workers – they won’t be able to afford to sue you.
(This article was first published in Socialist Review)
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Wednesday 26th October 2011 at 10:42am
Employment Tribunals, a venture capitalist writes
The papers have been sent leaked extracts of a new Number 10 report, to the effect that workers should lose their right to claim unfair dismissal.
The report was written by Adrian Beechcroft, described as a “venture capitalist”, which does make you wistful for the old days of long ago when Tory policy was made up by people who claimed at least some knowledge of the area of life which they proposed to alter; instead of the present, where expertise seemed to be established by saying simply “you’ve got to do what I want, I’m very rich.”
It’s hard to comment meaningfully on proposals which are poorly reported, and appear thin at best, but:
Beechroft’s particular target seems to be the difficulty that employers have in dismissing workers on grounds of capability. It would be interesting to know if anyone had done any research on what proportion of all dismissal claims relate to capability dismissals, and what proportion of them claimants win. My own experience is that capability dismissal more rarely lead to claims than say misconduct dismissals (which represent a much greater black mark against the worker’s future career). Capability claims are also much shorter than misconduct claims (i.e. less costly to the employers). It would be a shame – to say the least – if an entire strategy for the Employment Tribunal system was based on a relatively exotic species of claim, which causes employers relatively little loss.
The rationale for the proposals appears to be that all Britain’s economic woes would be cured if only employers could fire more easily. (This is the point at which relying on the economic advice of a venture capitalist appears particular well … tacky).
At various points in my book, I give figures for the rate of dismissals in the UK economy. To summarise them, my best estimate is that since ETs were introduced the rate of dismissals has more than doubled. Before the recession began in 2008, dismissals were about twice as frequent as they were in the late 1960s, and dismissals seem to have doubled again since 2008.
In other words, even with the “shield” of Tribunals, sackings are about four times as common as they were a generation ago. Why on earth should we want to make it easier for the bosses to dismiss even more people?
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