The suspense *suspension* is killing me

We are often asked as advisors of employers whether it is appropriate for a client to suspend one of their employees pending a disciplinary hearing.   Is suspension a safe course of action?

Check your disciplinary procedure

The starting point is to look at the company disciplinary procedure to ascertain whether there is provision for suspension. For example, many organisations provide that suspension may be implemented if the circumstances could be deemed gross misconduct.

ACAS Code

It is also wise to consider the ACAS Code of Practice on Disciplinary and Grievance Procedures. Paragraph 8 of the Code makes it clear that where a period of suspension with pay is considered necessary, it should be as brief as possible, should be kept under review and should be made clear that suspension is not seen as a disciplinary action.

Knee jerk reaction

Some employers suspend as a matter of routine in all cases which could lead to disciplinary action. This approach is wrong and not without real risk. Employers need to weigh up each case on its own merits and decide whether a suspension is in fact necessary (to use the ACAS wording). A knee jerk suspension without any balancing act by the employer to weigh up the pros and cons is open to challenge.

Neutral act?

Employers often describe suspension as a neutral act. The employee is still on full pay and gets to sit at home or go to the pub, so where’s the harm, right? Well many employees often find the act of suspension humiliating and distressing. A recent case has demonstrated further why employers should always think before suspending.

The case

In Agoreyo v London Borough of Lambeth, a teacher was suspended due to the force she used in dealing with 2 children. Her employer’s stated rationale for the “neutral” suspension was to allow an “investigation to be conducted fairly”. The employee resigned immediately in response to the suspension and pursued a claim for damages arising from breach of contract (the act of suspension being the breach). She had only been employed for 5 weeks at the time of suspension. The High Court held that the act of suspension was a repudiatory breach of the implied term as to trust and confidence. The employee was successful.

Summary  

The Agoreyo judgment makes it clear that employers are no longer on safe ground to hand out knee jerk suspensions. This approach risks breaching the employment contract.

What should employers do?

Weigh up the pros and cons of suspension. Consider whether there are any alternatives to suspension. Listen to the employee’s version of events before reaching a decision. Document the considerations in the letter of suspension so that the letter backs up the “Why?” question.

Take advice before implementing a suspension.

Jack Boyle
Associate Solicitor
@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

Self-employed, Employee or Worker? Another “plunge” into the legal issues around worker status

The Court of Appeal issued a decision last week in the case of Pimlico Plumbers & Charlie Mullins v Gary Smith. It is anticipated that this case will become the main authority on the legal issues surrounding whether a person is self-employed, employed or in the middle category of worker.

Legal status is a matter with which courts and tribunals have grappled for years. Why is it important? Well, it all boils down to legal rights. Self-employed contractors have fairly limited legal rights under employment law. Workers have more rights but not as many as employees who have the most legal protection. For example, employees have the right to minimum notice periods, statutory redundancy pay and can claim unfair dismissal after two years’ service. Workers do not have these rights, but do share some rights in common with employees such as pension auto enrolment, the right to paid annual holidays and national minimum wage (none of which are available to self-employed contractors).

Hot on the heels of a number of recent decisions involving the legal status of those working in the gig economy (Uber, CitySprint), the Pimlico Plumbers decision brings the matter of status to the fore once again. Mr Smith worked for Pimlico for a number of years. He was self-employed for tax purposes and did his own VAT returns. He penned an agreement which committed him to minimum weekly working hours, required him to wear a uniform and drive a branded van, provided that he could only use other Pimlico Plumbers to substitute work and limited his entitlement to work for other businesses.

Mr Smith raised tribunal claims and he was found not to be self-employed (as contended by the business) but a worker. A worker is someone who undertakes to “do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried out by the individual”. He was also found to be in the extended category of employee (required for discrimination claims) which includes persons employed under a contract personally to do work. He was not, however an employee in the sense of holding the full suite of legal rights.

The Master of the Rolls stated that “the case puts a spotlight on a business model under which operatives are intended to appear to the clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker”.

The relevant considerations:-

  • Mr Smith was under an obligation to provide his services personally (true self-employed persons not being under such an obligation);
  • Minimum weekly working hours (true contractors are supposed to have autonomy as to when they work);
  • There was no express unfettered right for Mr Smith to send a substitute to do the work in his place;
  • Evidence suggested that Pimlico had very tight control over Mr Smith in many aspects;
  • He had to wear their uniform and drive their van;
  • The agreement which he entered into restricted him from working as a plumber in the area for 3 months after termination with Pimlico.

The Court of Appeal reached a conclusion that the personal obligation to perform services and the degree of control exercised by Pimlico was inconsistent with their argument that Pimlico was a client of a business being run by Mr Smith.

If you are in any doubt about the legal status of those engaged by your business and want to avoid a “drain” on your legal resources, take advice from Blackadders Employment Team.

If this case proves at least one thing, this important legal principle is not just water under the fridge”.

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

Step 2: How to Conduct an Investigation at Work | Employment Lawyer in Your Pocket

Employment Lawyer in Your Pocket is a podcast delivered by Blackadders award winning Employment Law team which will provide practical employment law advice to HR managers and business owners. In their first series, the team will discuss the steps which a manager must take when looking to conduct a fair dismissal.

Episode 2: Simon and Jack discuss how to conduct an investigation meeting at work.  What steps should you take before conducting an investigation meeting? Who should conduct the investigation meeting?  When it is appropriate to suspend an employee?

You can click here to access the previous episode of this podcast series “Step 1: Where Do I Start When Managing Employees?”

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

#ELIYP

Step 1: Where Do I Start When Managing Employees? | Employment Lawyer in Your Pocket

Employment Lawyer in Your Pocket is a podcast delivered by Blackadders award winning Employment Law team which will provide practical employment law advice to HR managers and business owners. In their first series, the team will discuss the steps which a manager must take when looking to conduct a fair dismissal.

Episode 1: Simon and Andrew discuss the first steps a manager or employer should take before taking formal disciplinary action.  Why does it matter for a business to get the correct procedure?  Is it a performance issue?  Is it improper behaviour?  It is gross misconduct?  Is it conduct or is it capability?

We would be delighted if you could provide us with any feedback in the comments box below.

Follow the Employment Law team on Twitter: @EmpLawyerSimon, @EmpLawyerJack and @EmpLawyerAndy

#ELIYP

5 Reasons Why Obi Wan Kenobi Was a Terrible Mentor

 

obi-wan-kenobi-and-Anakin-skywalker-obi-wan-kenobi-and-anakin-skywalker-17321983-376-304
Anakin Skywalker was mentored by the Jedi Master Obi Wan Kenobi. But did he do a good job?

We all know the story. Jedi Master (Obi Wan) agrees to mentor Padawan apprentice (Anakin Skywalker) whilst training him to be a Jedi Knight. Mentee is seduced by the Dark Side. Mentee decides that he wants to rule the Galaxy. Mentee takes on mentor in winner-takes-all light sabre battle. Mentor emerges the victor, leaving his mentee to die. (Mentee later decides that he still wants to rule galaxy but that’s a whole different set of films)

Most blame Supreme Chancellor Palpatine for Anakin’s lure to the Dark Side. Others blame Padme. Personally, I blame Obi Wan. He was a truly terrible mentor. And here are my five reasons why.

  • Lack of integrity: Throughout his training, Obi Wan labours the merits and integrity of the Jedi to his eager mentee. Jedis never give in to feelings of anger. Jedis never give in to feelings of fear. Jedis never tell lies … blah, blah, blah. However during the course of this mentorship, Obi Wan instructs his mentee to spy on the Supreme Chancellor on behalf of the Jedi Council. Did this instruction demonstrate integrity? Not in my view. A mentor should demonstrate integrity at all times to a mentee and, as a mentor, Obi Wan failed in this respect.
  • Lack of challenge: The role of mentor involves a degree of objective scrutiny. A mentor should be able to constructively challenge his mentee about any issues which are discussed between them. Obi Wan fails on each occasion to do this. But let’s face it – this is not a surprise. Obi Wan’s inability to process information about anyone other than himself should have been obvious to all of us, given his complete failure to recognise that the Supreme Chancellor was in fact the Sith Lord! It couldn’t have been more obvious, had it been tattooed on his face. A mentor requires to listen, guide and, where appropriate, criticise constructively. Help me, Obi Wan Kenobi. I am losing hope in your abilities as a mentor.
Luke-and-Ben-ben-kenobi-and-luke-skywalker-27817047-1280-853
Obi Wan got a second chance at proving his mentoring skills with Luke Skywalker.
  • Dishonesty: Acting as a mentor involves complete honesty, with the occasional degree of diplomacy. However even when Obi Wan gets a second chance at mentoring Luke Skywalker, he fails to disclose various essential truths to him. Yes, he tells Luke how evil Vader was. Yes, he tells Luke that Vader “betrayed and murdered” his father. However he fails to get round to telling Luke that Vader is his actual father! There should be 100% trust and honesty between a mentor and mentee and again, Obi Wan falls down in this respect.
  • Hypocritical: A mentor requires to be admirable and accessible. In my view, Obi Wan completely lacks these qualities and, at times, verges on being hypocritical and remote. Do we remember him telling Anakin that, at the age of nine, he was too old to begin Jedi training? Why then does Obi Wan wait for nineteen years before commencing Luke’s training? What a hypocrite. And what was he playing at living like a hermit in these caves whilst Luke was growing up. As a mentor, the door should always have been open to the mentee. Game over, Obi Wan. Game over.
  • Uninspiring: Let’s face it. Obi Wan is uninspiring. His style of mentoring involves lecturing and patronising his mentee. Moulding does not mean scolding. Instead of lecturing him on his arrogance or recording the frequent incidents of insubordination in his calendar, he should have perhaps spent some quality time with him. A mentor and mentee should aim to do fun things together, as well as the more serious side of the mentoring. You should have shared a Jawa Juice with him, Obi Wan. Or at least taken him to an ice hockey match.

As an employer, if you encourage a mentoring programme in the workplace, you should ensure that this mentoring scheme is worthwhile. All too often, an employer will set up a mentoring arrangement and then fail to give too much attention to the benefits (or not) of it. Such a scheme should be of benefit to both the mentee and the employer. In the words of Yoda, “Do. Or do not. There is no try.”

So if you are involved in a mentor scheme, either as a mentor or a mentee, you would be wise to remember what happened a long, long time ago, in a galaxy far, far away, with particular reference to Obi Wan’s failings as a mentor. In fact, forget about Obi Wan, Anakin and Skywalker. And look instead at Chewbacca. He turned out OK. As a mentor, why not style yourself on Han Solo instead? (Or, if you’ve seen the newest film, Han YOLO)

Good luck. And may the Force be with you.

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

 

 

 

Zero Hours Contracts

Zero hours contracts emerged as a hot topic during this year’s General Election and the new Government has already started making changes in this area of employment law.

Primarily used for casual workers, the general understanding of a zero hours contract is that an employer does not have to provide minimum working hours to the worker, whilst many contracts also expect workers to be available to work when it is offered.

For years zero hours contracts have allowed for a flexible workforce, traditionally for seasonal work or to cover short term staff shortages.  That said, there is now concern that zero hours contracts are being used in areas where they are not suitable, because they put workers at risk of missing out on benefits such as paid holidays and sick pay.

The Government has started to clamp down on zero hours contracts.  Since the end of May 2015, exclusivity clauses in zero hours contracts, which prevent an individual from working for another employer even if their contracting employer cannot offer them work, have been unenforceable under the Small Business, Enterprise and Employment Act 2015.

In addition, although the secondary legislation is not yet in place, the Act also allows the Government to introduce a protection from detriment for zero hours contract workers who take jobs under other contracts, and a guaranteed minimum pay level, below which exclusivity clauses will be unenforceable generally.

We will see if the Government goes these steps further.  In the meantime, employers who use zero hours contracts should review their contracts noting that any exclusivity clauses in them will no longer be enforceable.

Sarah Winter
Senior Solicitor – Employment Law 
www.blackadders.co.uk