Protected Conversations – Will they Help?

The Enterprise and Regulatory Reform Bill is being scrutinised by Parliamentary committee all this week.  Under proposed legislative reforms the Government has said that employers will be able to have “protected conversations” with their employees to try and negotiate exit terms before dismissing them and those conversations will not be able to be relied upon by the employee in any subsequent unfair dismissal claim. 

In reality, such conversations already frequently take place and the issue of whether or not they can be relied upon in subsequent tribunal hearings is often a moot point on the basis that the conversations almost always result in a settlement governed by a compromise agreement – in future to be called a “settlement agreement”.  Therefore, as with many of the proposed changes put forward by the Government with a view to appeasing business, I cannot see how, in any practical way, things will change. 

Indeed, it is already the case that such conversations can be protected under the ordinary “without prejudice” rule.  If the parties are already in dispute, even if the dismissal has not yet taken place, then the employer can enter into such negotiations on a “without prejudice” basis, knowing that such negotiations cannot then be relied upon in any future court or tribunal proceedings. 

However, the Government wishes to add a new section 111A to the Employment Rights Act 1996:

 111A Confidentiality of negotiations before termination of employment

(1) In determining any matter arising on a complaint under section 111 [an unfair dismissal claim], an employment tribunal may not take account of any offer made or discussions held, before the termination of the employment in question, with a view to it being terminated on terms agreed between the employer and the employee.

This is subject to the following provisions of this section.

(2) Subsection (1) does not apply where, according to the complainant’s case, the circumstances are such that a provision (whenever made) contained in, or made under, this or any other Act requires the complainant to be regarded for the purposes of this Part as unfairly dismissed.

(3) In relation to anything said or done which in the tribunal’s opinion was improper, or was connected with improper behaviour, subsection (1) applies only to the extent that the tribunal considers just.

(4) The reference in subsection (1) to a matter arising on a complaint under section 111 includes any question as to costs, except in relation to an offer made on the basis that the right to refer to it on any such question is reserved.

(5) Subsection (1) does not prevent the tribunal from taking account of a determination made in any other proceedings between the employer and the employee in which account was taken of an offer or discussions of the kind mentioned in that subsection.”

What this means in simple terms is that the conversations will only be protected in claims of ordinary unfair dismissal.  The conversations will not be protected in claims of:

  •  automatically unfair dismissal (such as for whistle-blowing etc)
  • discrimination
  • breach of contract
  • where the conduct of the employer has been “improper”

 It’s going to be interesting to see what happens in reality as any legally represented Claimant who wants to rely on a pre-dismissal conversation (which is not protected by the “without prejudice” rule) will no doubt advance multiple claims, with the unfair dismissal being but one of them.  Indeed, even a simple constructive dismissal is frequently both wrongful (i.e. a dismissal in breach of contract) and an unfair.  In that case, will the employee be able to rely on any pre-dismissal conversations?  Quite possibly.

 I am also looking forward to hearing the arguments about what amounts to “improper conduct” in such circumstances.  No doubt employees will try and advance that argument in every case. 

My feelings about these proposed changes are that they will unnecessarily complicate even simple tribunal claims, resulting in even more unnecessary time spent by lawyers arguing over technical points.  The Government wants to free up tribunals and promote early settlement, but I can see this going only one way – increasing the length and cost of proceedings.  Employers and employees who want to reach early settlement of disputes are already well able to do so and therefore these changes will, in my view, affect only those who would have ended up in tribunal anyway and will affect them negatively.

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Try to be flexible about flexible working

An employer struggling in this present economic climate might be relieved when an employee makes a request to work part-time thereby reducing the employer’s overheads.  However, not all businesses embrace flexible working.  Employers should nevertheless think twice before refusing a request to work flexibly.

Take the following example:

John is a senior accountant at a big accounting firm in London.  He has been with the firm for a number of years.  John’s wife, Jane, who is a corporate partner in a law firm, has recently had a baby boy, Jack.  Due to the nature of Jane’s job, John and Jane have decided that it would be best for John to work part-time to look after their son.  Following Jane’s maternity leave, John therefore makes a request to his firm to work part-time to care for Jack.  Does John have a right to request flexible working?  If his firm do not want one of their male senior accountants to work part-time can they simply refuse his request?

The statutory right to request flexible working now extends to:

  •  an employee who wants to work flexibly to care for a child who is under 17 years old (or 18 years old if the child is disabled) and who is either the child’s mother, father, adoptive parent, guardian or foster parent or the spouse, civil partner or partner of the child’s mother, father, adopter, guardian or foster parent; and
  •  an employee who wants to work flexibly to care for an adult who is aged 18 and over who is in need of care and who is married to, or the civil partner or partner of the employee, a relative of the employee or who lives at the same address as the employee.

 

Employees must also have 26 weeks’ continuous service at the date the request is made and must not have made a request to work flexibly during the preceding 12 months.  Unless John has made such a request in the previous 12 months, he will therefore be eligible to make a request for flexible working.

However, while John’s firm must follow the statutory request procedure, they need only consider John’s request properly and may refuse the request on one of the grounds set out in the flexible working legislation which are as follows:

  • The burden of additional costs.
  • Detrimental effect on ability to meet customer demand.
  • Inability to re-organise work among existing staff.
  • Inability to recruit additional staff.
  • Detrimental impact on quality.
  • Detrimental impact on performance.
  • Insufficiency of work during the periods the employee proposes to work.
  • Planned structural changes.

 

However, while the firm can refuse John’s request on one of the above grounds, that will not prevent John from claiming sex discrimination.  John will be able claim direct discrimination if women in his company are regularly allowed to work part-time.  Similarly, were the request being made by his wife and she was refused, she would be able to claim indirect sex discrimination if she could show that the requirement to work full-time has a proportionally greater detrimental affect on women than on men and that such a requirement is not objectively justified.

Therefore the firm and employers generally do need to consider beyond the business grounds set out in the flexible working legislation to avoid costly claims of sex discrimination.  Furthermore, it would be unwise for the employer to simply cite “additional costs burden” or “detrimental impact on quality” without actually going into the detail of what the impact will actually be and whether there are alternatives which may work for both the employee and the business.  

If you are an employee seeking to make a flexible working request, you need to consider carefully what your employer’s objections are likely to be so that you can consider possible solutions to the problems envisaged.  Similarly, if you are the employer, it is useful to approach any request with as open a mind as possible as it may be that a new way of working could actually be beneficial to the business overall.

Blowing the Whistle

Except for dismissals which are deemed to be “automatically unfair”, employees must have  at least 12 months’ continuous employment in order to qualify for unfair dismissal protection.   One such automatically unfair reason for dismissal is because someone has made a “protected disclosure” otherwise known as “whistleblowing”, and this applies to constructive as well as actual dismissal.

For this reason, some canny employees who realise that they are at risk of being fired for poor performance (or some other reason) during the first year of employment, make allegations of wrongdoing to their employers and then when they are subsequently dismissed they try and invoke the whistleblowing protection.  This is naturally something which is of concern to employers, particularly as there is no cap on the level of compensation which can be awarded to someone who has been dismissed for making a protected disclosure.

However, employees who wish to use this ploy* should beware as the protection is only afforded if (a) the disclosure was made in good faith and (b) if the disclosure was the reason (or main reason) for the dismissal.  Furthermore, once the employer has established that the employee has not been employed for a sufficient period to claim ordinary unfair dimissal then the burden of proof is on the employee to show that the reason for the dismissal was because he made a protected disclosure and not some other reason.

The following disclosures are qualifying disclosures:

1.  that a criminal offence has been committed, is being committed or is likely to be committed;

2.  that a person has failed, is failing or is likely to fail to comply with any legal obligation to which he is subject

3.  that a miscarriage of justice has occurred, is occurring or is likely to occur;

4.  that the health or safety of any individual has been, is being or is likely to be endangered;

5.  that the environment has been, is being or is likely to be damaged; or

6.  that information tending to show any matter falling within any one of the preceding paragraphs has been, or is likely to be deliberately concealed.

However, if the employer can establish that the employee did not make the disclosure in good faith then the employee’s claim will fail.   So what does it mean to make a disclosure in good faith?  The point is illustrated clearly in the case of Street v Derbyshire Unemployed Workers’ Centre [2004].

In this case the Claimant was employed as an adminstrator for Derbyshire.  In May 2000 she wrote to the treasurer of the borough council making various allegations against a colleague, a Mr Hampton.  The matters she raised were eventually investigated and Mr Hampton was exonerated of any wrongdoing.  The employers then commenced disciplinary proceedings against Mrs Street which resulted in her being dismissed for gross misconduct and breach of trust.  Mrs Street claimed that she had been dismissed for making protected disclosures and that her dismissal, therefore, was automatically unfair.

This case went all the way to the Court of Appeal and it was held that Mrs Street’s claim must fail because even though Mrs Street reasonably believed in the substantial truth of her allegations; even though she had not made the disclosures for personal gain and even though it had been reasonable for her to make the disclosures, the Court of Appeal (and the earlier tribunals) found that her disclosure had been motivated by her personal antagonism towards Mr Hampton and that this meant that it was not made in good faith. 

*This article is assuming that the employee is reporting the wrongdoing to his employer.  Other hurdles may need to be overcome if the employee makes the disclosure to another prescribed person.

I’m a fantastic boss, how can I possibly be being sued for sex discrimination?

Most employers these days, if asked, would say that they treat everyone fairly and that they don’t discriminate.   Almost without exception, when I am instructed by companies both large and small who have been sued for unlawful discrimination, (whether it be sex, race, disability or other form of discrimination), the very first thing I get from the client is a sense of outrage that the former employee has had the audacity to pursue such a claim.   There is almost always an immediate refusal to consider even the possibility of reaching a settlement and the stance is usually that the person pursuing the claim is a villain and that his or her claim must be defended as a matter of principle at any cost.

Of course, that is good news for me  as clearly a claim which settles quickly is going to result in far less time and expense on legal fees for the client than one which is fought all the way to the employment tribunal.  However, I will usually try to get the client to  see the facts of the case from the point of view of the former employee and to see how seemingly innocuous events can be interpreted in a far more sinister way.

Take the following example:

Andy is a senior manager in a company.  Andy is 40 and is married to Kate who is a full-time Mum to Andy’s two children who are aged 3 and 5.  Andy loves his kids but doesn’t really have to worry about them too much as Kate takes care of their day to day needs.  Andy has a good sense of humour and loves a bit of office banter.  Andy sees the company as being very collegiate and friendly and works hard to maintain that atmosphere.  Andy is big on fostering a team sprit and organises team get togethers and outings frequently in order to try and keep the cohesion in the department.   Andy sees himself as being a really good and supportive boss. Andy is  a huge fan of a Tottenham Hotspurs.

Alex, 35 and single, who has recently joined Andy’s team is also a long time Tottenham Hotspurs supporter.  Andy is delighted to have someone to moan about their pathetic performance this season with.  Andy is also pleased to note that Alex enjoys going for a few drinks after work as Andy thinks that after work bonding is key to having a successful department.

Another member of Andy’s team is  Sam.   Sam has been with the company for about 6 years and has always done well.  She has never had a bad appraisal.  Sam has a young family so doesn’t really like to go out much after work as she needs to be home to look after her kids.  Andy understands and, in fact, recently agreed to a flexible working arrangement, on a trial basis.  Andy has also been trying to cut Sam a bit more slack on the client facing front so he’s started taking Alex with him to client meetings and on client entertaining events rather than inviting Sam.   Andy thinks that he is demonstrating what a caring boss he is.

Alex is now getting to meet lots of clients and is performing really well.  Andy is delighted and decides to invite Alex to pitch to a really important new client.  This is a fantastic opportunity for Alex as he’s only been with the company for 6 months and this sort of pitch would normally go to someone more senior.   However, Andy is really keen to support Alex and loves his enthusiasm.

Sam is starting to feel sidelined and wonders if it is because she has asked for flexible working.

You can see from the above scenario how it wouldn’t take much  for Sam to go from simply feeling sidelined to feeling like she was being pushed out and discriminated against.  However, I’m sure you can also see how, if Andy were to receive a Tribunal claim for sex discrimination he would be absolutely appalled and probably very angry.  When you look at the whole picture, it is very easy to see how and why many claims end up at the Employment Tribunal.

 

 

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