Blackadders Employment Team Scoops Prestigious “Excellence in Client Care” accolade: GoT Legal Award, GoT Excellent Clients, GoT Game of Thrones trip to plan

Last night, the Scott & Company Legal Awards 2017 took place at the Assembly Rooms, Edinburgh. Over 70 entries made the shortlist in a year which attracted a consistently high number of firms. Blackadders were one of 40 firms named as finalists and were ultimately crowned winners of the Excellence in Client Care Award 2017.

In support of this award, clients had stated that the Blackadders’ employment team are “the best in their field”“highly efficient and very approachable” as well as “cost effective and extremely knowledgeable”.

“Nothing is ever too much trouble for the team and they always go above and beyond what is expected of them. They provide as close to a 24/7 service as I have encountered and we would not consider using anyone else.”

“The team are refreshingly different from their competitors and are forward-thinking, approachable and enthusiastic. The team’s blogs and tweets are always relevant, relatable and entertaining.”

The judging panel stated that the judging process had been very difficult, given the high calibre of entries in all categories. However, ultimately, the panel felt that the Blackadders’ employment team were the best in their category. In addition to dealing with a number of “high value cases” over the past twelve months and giving an excellent client care service, the judges stated that Blackadders’ employment team offered “a fresh and innovative approach to employment law which made them stand out as leaders in their field.

Simon Allison, Head of the Employment Team, stated that he was surprised and extremely honoured to have won the award, given the high standard of the fellow finalists. He dedicated the award to his team on the basis that they had worked exceptionally well together on various projects over the past year and were, in his view, thoroughly deserving of the award.

In addition to this award, Andrew Wallace won the Highly Commended Award for Rising Star of the Year 2017.

Last year, Simon took the team to Dublin to celebrate their success at the Legal Awards. 2016. Prior to the 2017 awards ceremony, Simon had taken a bet with his team that, if they won, he would take them on the Game of Thrones tour in Belfast but that, if they lost, they would be doing the Eight Peaks Challenge with him. Last night’s result spells an expensive month for Simon (who was last seen googling the cheapest means of transport to get to Westeros).

Well done Simon, Jack and Andrew – Excellence in Client Care Award 2017 and Rising Star of the Year Award 2017!

The Replacement: The Cause, The Claws & The Flaws

Did any of you catch the BBC’s latest drama, The Replacement?

It started off as the same old story. Ellen becomes pregnant. Ellen identifies her maternity leave cover post, Paula. Paula commences her duties prior to Ellen finishing up and seems like the perfect hire – enthusiastic, personable, super-competent. In fact, Paula takes to her myriad of duties much like Superwoman.    And that is when Ellen begins to worry that Paula has another agenda.

Ellen begins to suspect that Paula is after her clients, her job, her colleagues, her friends and even her baby. Before long, Paula has sharpened her claws. And before the first episode had even finished, every beat in the female psycho-thriller playbook had been pulled out of the bag.

Without giving too much away, there are accusations of baby-stealing, pill-popping and being “pushed” down a set of stairs. And the expression “hot-wiring airbags” will never seem the same again.   However there are some major flaws with The Replacement.

Without being a stereotypical, know-it-all employment lawyer, my three key flaws all relate to Ellen’s employer and, more specifically, her creepy boss, David Warnock:

1. An employer is not permitted to allow an employee to work during the two weeks’ (extended to four weeks for some factory/workshop workers) commencing the day on which child birth occurs. An employer who does so is guilty of an offence. How long was Ellen actually on maternity leave for? When Ellen had the fateful first meeting back with the equally creepy client, Vernon, he makes the point that Ellen (who had already returned to work, albeit to hack into Paula’s computer and set up a fictional client with the elusive Georgia) had barely been back for four weeks. Whether or not Ellen was actually permitted to use her statutory two weeks’ leave is probably insignificant given the fact that she was clearly back to work much sooner than was reasonable in the circumstances. Surely an employer with half an ounce of common sense could tell that she came back far too soon.

2. Similarly shortly after the birth, Ellen visits the office to meet with Creepy David. “I don’t want you to put yourself under any pressure to return to work because of Kay”, says David. “No”, assures Ellen, “I want to be here.” Ellen proceeds back to work, albeit again that “work” involves creeping on Paula’s daughter’s Facebook account and spying on her boss and maternity leave cover, Paula. An employee is entitled to work for up to 10 KIT (“keeping in touch”) days during maternity leave, without bringing their maternity leave to an end. Were these KIT days used? Probably not.

3. Lastly, when Ellen returned to work, she was sidelined from her old project, the library. Ellen asked about the library project and was told by her boss, “Paula’s handling it. Vernon has got used to her. That’s all.” This was the same project about which there had been a debate – skylight or no skylight? Do you remember skylight-gate? When Paula first opposed Ellen’s idea about the skylight, she later reinstated the idea (only to discover her colleague’s dead body being shoved through the skylight). The law is clear that an employee who returns to work within 26 weeks of maternity leave is entitled to return to exactly the same job, on the same terms and conditions. Creepy David had obviously never heard of that and Ellen’s request to return to the library project went out of the window (or should that be skylight?).

So basically I can forgive Ellen for turning into MacGuyver and hot-wiring these airbags as I presume that architects must have a basic engineering knowledge and Ellen must have completed her motor electronics course in an earlier episode….

And I can even forgive Paula for pushing her colleague out of the window – let’s face it, line managers can be difficult. After a dramatic showdown involving a kidnapped baby, sleeping pills and smashed window screens, she confessed all and was led away in handcuffs. She got what she deserved.

However it is Creepy David who cannot be forgiven. So he likes group hugs with his female colleagues. And he makes inappropriate remarks about his female colleagues’ appearance. But as far as employment law goes, the flaws are unacceptable.

I am away to watch something more realistic now…. like The X-Files.

Simon Allison
Partner – Employment Law
@EmpLawyerSimon
www.blackadders.co.uk

“Someone’s sitting there, pal…” Reasonable adjustments in the context of disabled bus users

Employment lawyers will be familiar with the concept of reasonable adjustments insofar as they relate to the employment relationship.

The law behind the case

FirstGroup plc v Paulley is a case concerning reasonable adjustments in the context of public service provision. Under the Equality Act 2010, a provider of services to the public is, in certain circumstances, under a duty to make reasonable adjustments for any service users who are disabled.   This duty arises where a provision, criterion or practice of the provider places disabled persons at a substantial disadvantage in relation to a relevant matter when compared with non-disabled service users.

The facts of the case

In this case, Mr Paulley was disabled and attempted to get on a bus operated by FirstGroup (“FG”). The designated disabled seat was already occupied by a passenger with a sleeping child in a pram. The driver asked the passenger to move but she refused, despite clear signage saying “Please give up this space for a wheelchair user”. The signage did not make any threats or reference to enforcement on the basis that FG preferred a more customer friendly approach. The operator’s policy was that people could be asked to move from disabled spaces but if they refused the disabled person would not be permitted to board the bus. That is what happened here and Mr P had to wait 20 minutes for the next bus. The driver was not expected to wrestle the lady and pram out of the seat.

The outcome of the case

Mr P raised a court claim of discrimination alleging failure to make reasonable adjustments. He was initially successful and won £5.5k in damages. FG appealed successfully on the basis that it was not reasonable to expect drivers to force non-disabled users out of a seat. It also acknowledged that a non-disabled person might have reasonable grounds for not vacating the space and drivers could not be expected to assess such reasonableness.

The case went all the way to the Supreme Court which found that while it would not be reasonable to have an absolute policy requiring drivers to force non-disabled users out of disabled seats, FG had not done enough by their policy of simply asking passengers to move from the disabled seat without anything further. The Court held that the policy should have required the driver to use “best endeavours” to encourage the reluctant passenger to move. For example, the driver could rephrase the original polite request as a requirement or even stop the bus to pressure the passenger into moving. Given the tight schedules on which buses operate, one can see the potential for such an approach leading to passenger dissatisfaction. However such peer pressure could well be sufficient to guilt the reluctant person into moving.

As one of the Lords put it, there was no ideal solution in this case, merely a number of unsatisfactory ones. Those with faith in the goodness of humanity would hope that cases of this nature will be few and far between, though perhaps that is wishful thinking.

What can we learn from this case?

The case does highlight a useful example of the application of the Equality Act beyond the employment law sphere in which it is most commonly quoted.

Please do not treat this as an invitation to occupy a disabled seat on the bus and see what the driver does about it!

Otherwise the wheels on the bus may not go round and round…

Jack Boyle
Associate – Employment Law
@EmpLawyerJack
www.blackadders.co.uk

“Lost” with SOSR dismissals? 5 TV examples “Breaking Bad” SOSR habits

Lawyers love a catch-all clause.

Whilst employers will be relatively familiar with the more standard forms of dismissal on the basis of misconduct, capability and redundancy, occasionally an employer will face a situation which does not fall squarely within these more-familiar settings. However fear not. The law provides for a “catch all” type of dismissal on the basis of “some other substantial reason”. This type of dismissal is often referred to as SOSR and covers the type of situation which is infrequently seen by employers.

Despite the fact that this wording appears to be “Limitless”, in reality an employer will often struggle to use this catch-all clause correctly. It is traditionally a very difficult reason to succeed with in an employment tribunal. Because it provides such a grey area, it can cost employers significant sums defending their reasons.

Here however are 5 examples of working relationships you may recognise which highlight when SOSR may be appropriate.

1. Prison Break – Michael Scofield – being sent to prison

The first example is fairly obvious although hopefully infrequent for employers. If you think way back to the beginning of Prison Break where structural engineer Michael Scofield walks into a bank, armed with a gun, framing himself for a crime that would send him to prison. Clearly while he is in prison, Scofield could not work and his employer could be entitled to dismiss him. In theory this could amount to a conduct issue, but bearing in mind that this happened outwith the workplace, and if there is no mention of such situations in any disciplinary policy, the employer will likely have to dismiss under the ground of SOSR.

When faced with this situation, do not assume the employee’s employment automatically comes to an end. Various considerations should be made and if you intend to dismiss in this situation, you would be wise to seek legal advice first.

2. Billions – Bobby Axlerod/Wendy Roades/Chuck Roades – conflict of interest

If you haven’t been watching Damian Lewis in Billions before now, then I would definitely recommend it. The programme focuses on the high life, the fame, the money, the glamour, the ruthlessness and the conflicts, the programme entertains with a number of different dynamics. One such dynamic, without giving any spoilers away, is the fact that the billionaire business owner’s most trusted adviser is married to the US Attorney investigating the legality of his business’s conduct. Although Bobby Axlerod does not wish to dismiss his most trusted adviser in the show, he probably could under the grounds of SOSR and the fear that she would be feeding information to her husband.

3. Suits – Harvey Specter/Donna Paulsen – dismissal to avoid having an affair with an employee

Those that watch Suits will be aware that there is a constant sexual tension between Harvey and Donna, and to be fair to Harvey, who can blame him. Surely it’s a matter of time before they both cave and commit to each other? There was a case in America a few years ago where a dentist dismissed his assistant on the basis that if she remained an employee, the temptation to have an affair with her would be too great. The dentist wanted to protect his family and this was found to be a fair dismissal. Although American law is different to UK law, it would be interesting to see how a similar situation would be determined by an Employment Judge. Such a dismissal would definitely come under the bracket of SOSR.

Again this highlights the rare kind of situation where an employer may want to utilise an SOSR dismissal. Rather than taking Harvey and Mike on at their own game, you should seek clarification from your own legal advisers.

4. Mad Men – Don Draper/Salvatore Romano – Third party pressure 

Do you remember when Don Draper fired Salvatore Romano by request of a major client who threatened to take his business elsewhere unless he was dismissed? This happened after Sal had made advances on the closeted art director the night before. Well this kind of situation has led to fair dismissals under SOSR in the UK. When such a request does come in, an employer must show that they have considered if it is reasonable to dismiss in the circumstances and that such a dismissal would not result in a disproportionate injustice to the employee.

5. Breaking Bad – Walter White/Jesse Pinkman – breakdown in working relationship

Although not strictly and employer/employee relationship, Walt and Jesse provide a clear example of a breakdown of a working relationship. A fundamental and irretrievable breakdown in work relations between two employees can give sufficient grounds for an SOSR dismissal. This would be appropriate where the individual conduct does not give sufficient grounds for a conduct dismissal, but the business cannot continue to function with a particular broken working relationship in place. Care needs to be taken if using this as a reason for SOSR. Whether it is fair is very much fact specific, and an employer must be able to show that there has been a fundamental and irretrievable breakdown. This is not as easy as many employers may think and before dismissing on this basis, you’d better call Saul (or any other lawyer of your choice).

So what do these examples show?

Firstly these examples strongly suggest that I need to engage in a more active social life.

However secondly these examples demonstrate that SOSR dismissals cover a wide breadth of situations. From employees going to prison, to employees trying to kill each other (or slightly less extreme examples of a breakdown in the working relationship), this is a slightly obscure (and sometimes interesting) area of law. One size does not fit all.

If an employer does intend to rely on an SOSR argument, it is generally always wise to show that they have generally considered matters and have applied a reasonable mindset. As every case is judged on the individual facts, it can be a complicated area of the law.

To avoid too many SOSR “Damages” or to avoid any SOSR unfair dismissal tribunal claims going down to “The Wire”, contact the employment team at Blackadders when considering SOSR as a dismissal option. Although it might not save you “Billions”, it is definitely more cost efficient speaking to us before pulling the trigger rather than defending a claim retrospectively.

Andrew Wallace
Solicitor – Employment Law
@EmpLawyerAndy
www.blackadders.co.uk

Step 8: How To Handle A Disciplinary Appeal Hearing? | Employment Lawyer In Your Pocket

blackadders logoEpisode 8: In the final episode of this podcast series Jack and Andrew discuss the essential steps for handling an appeal hearing. How significant are these hearings? Who should hear them? Can appeal hearings be used to the employer’s advantage? What led to a witness breaking into a Black Eyed Peas track whilst giving evidence in a tribunal? Listen to find out more on how to conduct a disciplinary process to an end.

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page or by responding to this e-mail. Thanks for listening!

You can also download this podcast free on iTunes.

You can listen to all of the previous episodes in this series here:

Step 7: What Happens If An Employee Fails To Attend A Disciplinary Hearing?
Step 6: How Do I Communicate A Fair Dismissal?

Step 5: What Is The Role Of HR In A Formal Meeting?

Step 4: How To Conduct A Disciplinary Meeting

Step 3: How To Prepare For A Disciplinary Meeting
Step 2: How To Conduct An Investigation At Work
Step 1: Where Do I Start When Managing Employees?

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerAndy

Step 7: What Happens If An Employee Fails To Attend A Disciplinary Hearing? | Employment Lawyer In Your Pocket

blackadders logoEpisode 7: What happens if an employee fails to attend a disciplinary hearing? Jack and Andrew discuss how to handle to problematic situation of an employee failing to attend a disciplinary hearing. Is that the end of the process? Can you assume the employee does not want to face the inevitable?  How many chances do you have to give them?  And what is the best excuse you have ever heard for someone failing to attend a disciplinary hearing?  Listen to find out more on how to handle this type of scenario.

We would be delighted if you would be able to provide us with some feedback by leaving a comment at the bottom of our podcast page or by responding to this e-mail.

You can also download this podcast free on iTunes.

You can listen to previous episodes in this series here:

Step 6: How Do I Communicate A Fair Dismissal?
Step 5: What Is The Role Of HR In A Formal Meeting?

Step 4: How To Conduct A Disciplinary Meeting

Step 3: How To Prepare For A Disciplinary Meeting
Step 2: How To Conduct An Investigation At Work
Step 1: Where Do I Start When Managing Employees?

The Blackadders employment team
Scottish Legal Awards Employment Team of the Year 2016 

Get in touch with the team on twitter:
@EmpLawyerSimon
@EmpLawyerJack
@EmpLawyerRich