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Employment Law Reforms Announced to Shake Up the Work Place and Encourage Businesses to Hire Again, reports Thomas Mansfield

Business Secretary Vince Cable has announced reforms to the UK’s employment laws that make it easier for employers to dismiss under-performing employees. The amended laws include settlement agreements which will give employers the opportunity to pay-off under-performing staff to prevent future claims of unfair dismissal. Although workers are not obliged to accept a pay-off, if they do so it will be legally protected and as such cannot be brought up as evidence in a future court case or tribunal.

At the same time, the maximum limit for a pay out for unfair dismissal is being reduced. It currently stands at £72,300, but MPs want this reduced to a maximum of 12 months’ salary. The aim is to encourage employers, particularly small and medium sized firms, to employ more people.

Critics say the proposals only benefit employers and remove rights from workers, but many employers, particularly smaller firms, should find some benefits, including savings of time and resources, and greater security.

Thomas Mansfield, employment solicitors London based, points out these new settlement agreements are pretty much the same as the existing compromise agreement system. Currently employees and employers can come to a specific agreement over a financial pay out from the employer in return for the employee bringing no claims against the employer in the future. Free legal representation is offered as part of this package, and Thomas Mansfield predicts it will be included in the new settlement agreements too.

The UK’s legal system is a confusing one and often beyond the reach of the ordinary worker. Thomas Mansfield is well placed to provide advice, support and representation on matters relating to employment law, including unfair dismissal and employment tribunals. It predicts the new rules are bound to cause further confusion among both employers and employees and advises anyone confused by the new laws to seek out legal advice when necessary.

Via EPR Network
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Qualifying Period for Unfair Dismissal

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Moves are afoot to increase the qualifying period for unfair dismissal from one to two years. The government believes this will encourage economic growth by giving businesses more confidence when they consider taking people on.

According to the government, the emphasis is on employers and employees having longer to resolve any differences and to avoid situations where employers bring the employment relationship to an end earlier than necessary.

The reality of the situation however, is that increasing the qualifying period for unfair dismissal from one to two years will undoubtedly empower employers to dismiss staff more readily. To this extent, some commentators argue that it will become a charter for businesses to sack people unfairly – and this means a wealth of new work for employment solicitors like Thomas Mansfield.

Another concern presented by the increase in the qualifying period is that it may disproportionately affect younger employees. Research on the subject suggests that half of the three million employees affected by the proposed change are under the age of 35. And while nearly half of all those under 20 currently qualify for unfair dismissal protection, this figure would fall to one in five under the government’s proposals.

Any government-enacted legislation increasing the qualifying period must comply with the Equal Treatment Framework Directive, which outlaws age discrimination and specifically indirect age discrimination. This discrimination occurs when an apparently neutral provision, criterion or practice puts people of a particular age at a particular disadvantage compared with people not of that age. The exception to this is where the provision, criterion or practice is capable of being objectively justified. Legislations which do not comply would be exposed to legal challenge by way of judicial review.

If such a challenge were to be mounted, the government would need to justify the measure by showing that it achieves a legitimate aim and is proportionate.

So is the increase in the qualifying period from one to two years a legitimate aim? Whilst it would be very nice to think that a longer qualifying period would enable employers and employees to resolve their problems without the possibility of dismissal, one can foresee the emergence of a hire and fire culture. Rather, employers should consider resolving their differences with staff earlier and in more meaningful ways, through inclusion and open dialogue.

It is easy to see how the increase in the qualifying period will be regarded as a boon for employers to remove troublesome staff. It also is a useful tool in circumstances where employers looking to dismiss 20 or more employees at one establishment find themselves having to adhere to the law relating to collective consultation. Quite often, an employer is well advised to terminate the employment of those employees with less than one year’s service if to do so would reduce the number of affected employees below 20, this being the point at which the obligation to collectively consult is triggered. Employment solicitors advise that avoiding collective consultation can save an employer both time and money.

It is very easy to be cynical about the government’s avowed purpose behind the increase in the qualifying period but we shall have to see how this debate pans out and whether a challenge is indeed mounted on the grounds of age.

Thomas Mansfield Solicitors, winners of the Innovation Award at the Law Society’s Excellence Awards 2009, are specialist employment solicitors, London based, who handle legal disputes concerning areas of employment as well as compromise agreements.

Via EPR Network
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Thomas Mansfield, Employment Solicitors, Illustrate how a Course of Conduct Amounts to Harassment

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Employment solicitors Thomas Mansfield put harassment in the bigger picture.

As employment solicitors, we often think of harassment in the context of discrimination. What isn’t always understood is harassment in the wider sense.

The Protection from Harassment Act 1997 (PHA) was originally introduced in the wake of the Jill Dando murder trial to protect people from stalkers. Now, it is increasingly being used by employees to protect them from conduct within the workplace.

The case of Iqbal v Dean Manson Solicitors [2011] heard by the court of Appeal (CA) on 15 February 2011 provides a timely reminder of what amounts to harassment under the PHA.

Mr Iqbal sued Dean Manson Solicitors (DMS) under the PHA on the basis that letters received by him from DMS, he said, amounted to harassment.

DMS had employed Mr Iqbal as an assistant solicitor for two months. During that time he had worked on a matter for Mr and Mrs Tahir whose fees were guaranteed by a third party Mr Butt. The clients failed to pay and in 2009 DMS brought proceedings under the guarantee against Mr Butt who instructed Mr Iqbal to act for him.

DMS wrote to Mr Iqbal on two occasions questioning his integrity and accusing him of serious conflict and conduct issues. It then wrote to him a third time asserting that he had misled the law society and the general public.

Mr Iqbal issued county court proceedings against DMS under the PHA. The county court initially rejected his claim on the basis that the letters could not amount to a course of conduct amounting to harassment.

Mr Iqbal appealed to the High Court which dismissed the appeal on the grounds that that the letters could not be said to be oppressive or unreasonable. That the third letter could be described as possibly amounting to harassment, but as a single incident, could not form a course of conduct.

The Court of Appeal began by asserting that each of the three communications was oppressive and unacceptable and amounted to a deliberate attack on Mr Iqbal’s professional and personal integrity.

Via EPR Network
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Employment Solicitors Thomas Mansfield’s David Gray-Jones in the Employment Appeal Tribunal

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Employment solicitors have for a long time grappled with the thorny issue of what constitutes employment status.

The main distinction of importance is that between an employee and a worker. An employee is an individual who has entered into, or works under a contract of employment. Broadly speaking, a contract of employment is a contract of service.

The question of employment status has been blurred in recent years by the evolution of the status of the worker and has become a task for employment solicitors to define.

Of this predicament, Thomas Mansfield’s David Gray-Jones says, ‘Whilst workers have less extensive employment protection rights than employees, such as the right not to be unfairly dismissed, other statutory employment protections including the right to holiday pay or to complain about non payment of wages, often cover workers as well as employees.’

For employment solicitors, the concise and efficient way to examine such cases is through EAT, a test applied by an employment tribunal when making decisions around unfair dismissals.

David Gray-Jones, of the Employment Appeal Tribunal he appeared in on behalf of Word by Word Translations Limited, argues that;

‘The claimant was neither an employee nor a worker; the employment tribunal did not have authority to hear his various claims including those of unfair dismissal and unauthorised deduction from wages.’

A fundamental tenet of a contract of service (a conventional contract of employment) is the requirement to perform the services personally. Of interest to the employment appeal tribunal was the fact that Mr Kuncharalingam had the power to delegate, that is, send a substitute to complete an assignment when he was unable to do so himself.

Whilst not establishing a new point of law, this case can be distinguished from earlier cases where the issue of substitution has been considered. Had the company exercised its power to limit Mr Kuncharalingam’s ability to provide a substitute then the employment tribunal might have felt obliged to follow previous legal authority and found him to be a worker.

What distinguished this case was the fact that Mr Kuncharalingam had an unfettered right to provide a substitute. He did so without telling the company and the company did not object. Thomas Mansfield’s David Gray-Jones says, ‘I was able to detect an absence of requirement for personal service and his case failed.’

Via EPR Network
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