In an unusual interview with Radio 5 Live this morning, Lord Digby Jones, part of Gordon Brown’s failed “Government of the Talents” has said that long terms unemployed benefits claimants should be starved back to work by cutting benefits to subsistence levels in a bid to force claimants to undertake paid work. Lord Digby Jones seems an unlikely source for such a comment but reflects an increasing trend in the Labour and Tory camps that could mean the toughening of the benefits system combined with mass (possibly subsidised) employment programs. Just a word of warning before everyone nods along: someone is going to have to manage disgruntled former benefits claimants with no experience of how to behave in a workplace environment!
Category Archives: uncategorized
Shoosmith Loses Judicial Review
Sharon Shoosmith, the former Head of Children’s Services at Harringey has lost in her bid to have the decision to dismiss her judicially reviewed.
She had been seeking to establish that the decision to dismiss her was as a result of unjustified media pressure and that the procedures followed were unfair. The judge was, however, quite damning of the procedures used and questioned the potential fairness of the dismissal which could lead to a claim in the Employment Tribunal should Ms Shoosmith have lodged a claim and then applied for a stay pending the result of the judicial review (which it is reported that she has).
It is important to note that a judicial review has limited scope and is not usually a means to an end in itself. The judgement makes this clear and reminds the parties that it is not the place of the High Court to make rulings of fairness. One has to question the merits of the judicial review and one wonders whether the limits on compensation applicable to dismissal cases in the Tribunal system has led Ms Shoosmith to seek a judicial review which may force the powers that be to reinstitute the disciplinary process rather than sue for compensation for loss of office in the Tribunal. If she were successful in the Tribunal, she could only recover losses up to around £72,000, which, when you are paid £140,00 per annum and are unlikely to work again for the foreseeable future, is small beans. This case, once again, calls into question the efficacy of the Tribunal system and highlights its many failures. Costs on both sides are now going to be double what they would have been if the Employment Tribunal system provided an adequate remedy for high earners.
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Agency Workers Not Protected Against Discrimination by End Users
In Muschett v HM Prison Service the Court of Appeal has held that nothing less than necessity is required to imply a contract for services between an agency worker and an end-user, so as to bring the worker within the wider definition of ‘employee’ in discrimination legislation. Although S.7 of the Race Relations Act 1976, and similar provisions in other discrimination legislation, allow contract workers to bring discrimination claims against a principal (end-user), this is only where they are employed by the person who supplies them. The decision suggests that, in typical agency worker arrangements, the law does not protect the worker from discrimination at the hands of the end-user.
However, before everyone starts discriminating against their agency workers for various reasons in wanton discriminationlust, a few words of caution.
This effect cannot have been the intention of Parliament when drafting discrimination legislation, nor could it have been the intention of the European Parliament when passing the various discrimination Directives. Maybe it is too late to make an amendment to the Equality Bill but expect legislation soon to fill in the gap in protection for agency workers (a group whom the Government already considers as being vulnerable).
Harman Backs Down after Pope Outburst
Apparently Harriet Harman’s views on equal opportunities do not extend to religious organisations as she has now assured religious organisations that they will enjoy an exemption in the new Equality Bill. The Bill is gathering a fearful head of steam and it looks increasingly like it will become law before the General Election, which we now know is on May 6th thanks to our Defence Secretary who can’t keep basic secret information to himself. Doesn’t he know that loose lips sink ships!?
The original draft had applied to all employers but, as John Bowers QC pointed out, it would effectively make the Catholic Church and a plethora of other organisations unlawful employers due to their stance on priests, imams etc (they are all male and any female applying for the role would have an automatic claim against them – not to mention homosexual and transgender applicants).
Whilst it was, I suppose, inevitable that this exemption would eventually be conceded, it is rather a shame for those of us who wanted to see just how much chaos reigned in religious organisations after the Bill became law.
It is also a blow for Harman; after all, she has back away from a fight with the area of employment with the biggest glass ceiling in history, the Catholic Church.
Unite attempts to have BA plans declared illegal
Unite has applied to the High Court on behalf of BA cabin crew for a declaration that the collective agreements between Unite and BA are actually contractual terms and therefore cannot be breached. It is well established law that collective agreements have (in the vast majority of cases) no contractual force. The remedy for breach of collective agreements by the employer is industrial action by the employee, not damages for breach of contract.
Unite would have to demonstrate that, notwithstanding the contractual framework that already exists between BA and its cabin crew that adequately and lawfully explains the relationship, the collective agreements have actually become part of the contracts of employment due to practice and custom.
I am throwing my hat into the ring on this one and predict a devastating defeat for Unite. To argue such a case they had better have some solid evidence of how the contractual relationship has evolved beyond the contractual terms to incorporate the collective agreements; that and incredibly impressive lawyers. As Martin has just said to me, “[If Unite wins] we may as well just forget current employment law and start again”. Any ruling in Unite’s favour on the evidence as I understand it to be would turn industrial relations law on its head.
Office Christmas Party Hi-Jinx!
Ah yes! Christmas – time for office parties and merriment – and embarrassing blunders! Employment lawyers love Christmas and in particular the nice little crop of litigation cases that result from Christmas parties. It’s always fun to see the normally prim and proper colleagues imbibe just a bit too much and then tell their boss what they really think of them! Gross misconduct dismissals are based on such things! Other typical occurrences which have employment lawyers rubbing their hands are minor arguments at the party which, seen through the bottom of an empty whisky glass, take on huge proportions and end up in bloody noses! And what about the well meaning manager who, after ten pints or so is VERY happy to offer his secretary a 100% wage increase, or to tell her that his wife has never understood him and he would welcome the opportunity to expand on the subject in a private room somewhere…..?
Employers are potentially liable for the actions of their employees while at the firm’s Christmas party. Make sure you warn your employees that they must control their alcohol consumption and their conduct at the office party, or they will face disciplinary consequences in the cold light of day on 4th January!
That apart, enjoy your office party. Stay (relatively?) sober and have a great holiday!
Flexible Working Arrangements increase as recession continues
Flexible working is still often seen solely as a benefit for part-time working mothers with young children. However, a new guide for managers, published by the Equality and Human Rights Commission, shows how employers in many different sectors are gaining better business results from making alternative work patterns widely available to employees.
A medium-sized engineering company in the Midlands making components for the car industry is not an obvious place to find flexible work arrangements. But Stuart Fell, owner of West Bromwich Tool and Engineering Company, told ‘The Times’ in October that two-way flexibility between him and his workers is at the core of his business model. Moreover, it a key ingredient in the success of his business.
The company, which makes pressed metal parts for large manufacturers such as BMW and Nissan, employs about 100 people on nearly 50 different working arrangements. “On paper, it seems very complicated,” Mr Fell said, “but it works very well and the company and employees each get what they need.
“This adaptable and ever-changing arrangement has proved to be capable of producing high performance and is not complicated to manage.”
He says that some employees would not be working for the company without the flexible options, ranging from variable start and finish times to early and late shifts, term-time working and time off at short notice. People are willing to come in early or stay late to get things done when necessary, he said. “There is business we have won because we have been able to respond quickly to a customer demand.”
Based on trust and two-way dialogue between managers and employees, the policy helped when the recession forced the press works to move employees to a four-day week at 80 per cent of pay for three months earlier this year. “When we told them these were extraordinary circumstances and things were bad, they really understood that it was serious and necessary and believed that we were telling the truth.”
Helen Mahy, company secretary at National Grid, which runs gas and electricity transmission networks, has a team of 70 in the UK, about half of whom have formal or informal flexibility, for example working from home for part of the week. This has helped her to recruit and retain skilled people. In general, company secretaries’ departments are fairly traditional, she said, also speaking to ‘The Times’, “There’s a view that you have to be where the board is and where the management and head office are. Yes, you do — but you don’t all have to be there at the same time.”
Handled well, flexibility gives managers a powerful tool to respond to both customers’ and employees’ needs. The business benefits documented in the guide include greater efficiency and productivity, better customer service cover, improved staff retention, reduced absenteeism, more efficient use of workspace and an enhanced reputation as an employer.
Despite the benefits, however, some industries remain resistant to flexible working. An Equality Commission report last week on flexible working for fathers showed that construction, manufacturing, retail and transport were the industries least likely to offer non-standard working arrangements.
Some employers fear that flexible working could be costly, complicated or even harmful to the business — yet more than 90 per cent of small businesses surveyed by the British Chambers of Commerce reported that set-up costs were zero or minimal. More than 70 per cent said that flexibility improved employee relations and more than half reported higher productivity.
• Working Better: A managers’ guide to Flexible Working by Alison Maitland for the Equality and Human Rights Commission, is available free at www.equalityhumanrights.com/flexible
Eurostar
There have been calls for the resignation of the Chief Executive of Eurostar. To me, they seem misplaced. Yes, he’s the head and public face of an organisation that has failed about a hundred thousand people at a very important time, but, if he goes, what good would that do and who would take his place?
More Job Cuts and Pay Freezes in 2010 says CBI
The CBI has warned that 2010 is unlikely to represent a change in the fortunes of the UK economy. It predicts that 2010 will see more job cuts, pay freezes and other devices used by businesses to cut costs and restructure.
Whilst it is likely that the economy will return to growth, without a major force or sector driving growth, it is likely to be years before we see any real change in fortunes. The restriction of credit is still a large problem for many small and medium sized businesses and that is unlikely to change in the next 6 months.
I am personally concerned that the removal of the various economic supports put in place over the past 18 months will stunt growth. I am also concerned that tax rises are coming to reduce our enormous budget deficit (where has it all gone Gordon and will there be an inquiry into Government profligacy when this is all over?) and that will dent consumer spending and severely restrict any growth in the retail sector. The increase in employer NI contributions could see similar restrictions in spending in the corporate sector.
Bah, humbug.


