Human Law Mediation Blog: Recent Posts

There is an interesting post from Money Management(Australia) highlighting one of the key society issues namely age discrimination and the ability of elderly worketrs to have a satisfactory income.

http://www.moneymanagement.com.au/news/age-discrimination-undermining-retirement-adeq--1

 

 

According to the TUC there is a significant increase in the number of over-50s and people over the retirement age in work over the past two decades.

The report shows that in April 1992, 56.5pc of people aged between 50 and 64 were employed. This rose to 64.9pc by December 2010. The number of over-64s in work rose from 5.5pc to 9pc over the same period.

TUC general secretary Brendan Barber said low wages and poor pension provision had meant older workers increasingly felt they could not afford to give up work.

This has an impact on the default retirement age.

The legal position is that  employers who have 65 as a compulsory retirement provision have to justify such a position.

Alternatively, an employer that wishes to retire an employee will have to be able to show that it has a fair reason for dismissal.

Employers face the double threat of age discrimination and unfair dismissal claims from employees who have been compulsorily retired.

Direct and indirect age discrimination claims are likely to revolve around whether or not the employer was objectively justified in requiring the employee to retire.

With unfair dismissal claims involving retirement, the key issues will be whether or not the employer had a fair reason for dismissal and followed a fair procedure once the decision was made to dismiss the employee.

If the dismissal is an objectively justified retirement, it will be deemed to be for "some other substantial reason" under s.98 of the Employment Rights Act 1996.

Overall what we are seeing big financial stakes for both employers and employees. Stand by for litigation.

Justin Patten, Employment Solicitor

The Bribery Act has been implemented on 1st July and there must be concerns over the readiness of organisations to comply..

According to a Ernst and Young survey, one in seven employees polled at large UK companies are prepared to offer cash payments to secure business, and little more than half are aware of an anti-bribery policy at their firm. 

As a consequence I would say most firms are in potential trouble regarding compliance. The survey of more than 2,300 employees, found that the majority of UK companies remain unprepared for the new legislation with compliance programmes significantly underperforming.

It is worth reflecting that breach of the Act is a criminal offence,  directors and officers can also be culpable and jail sentences of up to 10 years can be imposed

So if organisations do wish to get ready what are the key principles which organisations need to apply?

A simple policy can be drawn up for a relatively low fee and could ensure the company has a defence in relation to the corporate bribery offence. We can help with this.

Another defence is to put a warranty in contracts with distributors, agents, joint venture partners and others that no bribes, secret commissions have been given nor received and requiring the other party to include a similar clause in their own contracts.

Ongoing training is another useful defence which helps create a picture of an organisation on top of the legislation.

Justin Patten, Employment Solicitor

The Supreme Court has just ruled that it was not a breach of an employee's human rights to refuse him the right to be accompanied by a lawyer at a disciplinary hearing.

The case concerned a teaching assistant who was alleged to have acted inappropriately towards a pupil at the school at which he worked. 

This judgment is of significance to public sector employers, which should now be aware that an employee is not automatically entitled to legal representation at a disciplinary hearing that might result in him or her being referred to the authorities and potentially placed on the children's barred list.

Despite this, the Supreme Court has stressed that the issue is fact sensitive and leaves open the possibility that legal representation may be required in limited cases, although it stopped short of providing examples where this would be the case.

Let us move beyond the analysis of the judgment. 

As a tactical move if the matter is sensitive(e.g allegations of a sexual nature/criminal nature) I think there is merit in having a lawyer present as a representative. It is not just a case of complying with the law; there is a benefit in seeing how the case would play out in Court later. Sometimes it is better to go through the pain of dealing with a lawyer early rather than later.

Justin Patten

Employment Solicitor

So we know that up to 750,000 public sector workers will hold a co-ordinated strike later this month after members of a third major union backed industrial action.

The PCS said its 290,000 members had to defend themselves against "attacks" on their pensions by the government.

But ministers called it "irresponsible" and said the 32.4% turnout showed the strike had "extremely limited support".

The civil servants will walk out on 30 June - the same days as hundreds of thousands of teachers and lecturers.

Where things become interesting is in the fact that colaition may seek to introduce new legislation.

Accordsing to the BBC, London Mayor Boris Johnson and business organisation the CBI have suggested there should be a minimum turnout for union ballots in favour of strike action.

Earlier this month, Business Secretary Vince Cable said that while the case for changing the law was currently "not compelling", if there were co-ordinated and damaging strikes, "the pressure on us to act would ratchet up".

Mr Maude said he agreed with Mr Cable about the possibility of new legislation, adding: "We don't think the case is made at the moment, but we haven't ruled it out."

We are aware that we are entering a summer of discontent as Britain will witness the biggest strikes by public sector workers in decades if the government does not relent on its scheme to reform pension plans, cut jobs and reduce salaries, UK unions have warned.

Dave Prentis, the General Secretary of UNISON, the U.K.’s largest public sector union, further warned the industrial unrest could last for months.

Prentis has told media that he believes that public sector workers in Britain could see their wages reduced by as much as 10 percent as a result of pension contribution increased changes and salary freezes

With this in mind it is worth reminding that my firm has produced a White Paper catering for the public sector:

http://www.human-law.co.uk/Resource-Articles/Mediation-what-everyone-in-the-public-sector-should-be-talking-about.aspx

This White Paper explores the challenges being faced by the public sector in the UK and makes a strong argument for using mediation and mediation skills to address the issues to be faced by managers and HR professionals as public sector funding cuts take hold.

After reading this paper you will have a clear view of how you can:

Tackle the challenges of redundancy, redeployment and performance management legally and with minimum disruption
Avoid ‘getting it wrong’ and ending up with Employment Tribunal claims
Use mediation skills across your organisation to tackle problems head on and avoid conflict escalation
Create a sustainable solution using mediation programmes and practice
It includes details of how you can set up a mediation programme in your organisation and concludes with details of a 3-step process we use to assess organisational readiness for mediation.

As an added BONUS this white paper also includes the Human Law Mediation
6-Point Plan for a Successful Mediation, demonstrating how we would tackle any mediation assignment.

Another day and more news that the public sector is entering the realm of more disputes.

According to the Yorkshire Post, strike action is looming at a troubled Yorkshire council after 700 job losses were announced on top of cuts that have already seen hundreds axed.

Doncaster Council said the redundancies over and above 700 already carried out were needed to find savings of £71m. But the move triggered a furious response from unions, who warned that the decision put them on a collision course with management.

Thousands more job losses are also expected at other councils across the Yorkshire region, raising the spectre of widespread industrial action in coming months.

Public sector union Unison is already halfway through a strike ballot at Doncaster Council, a result being expected next Wednesday. The union has 5,000 members at the authority.

From the perspective of both parties it does not have to be this way where strike action manifests. In a situation like this everyone loses and where everyone realises the parties to have to pick up the pieces at the end.

This is an ongoing conflict sitiuation and unlike a straightforward conflict involves a number of parties.

The solution is Collective Mediation, Collective mediation helps to resolve disputes between groups of employees (usually represented by their union) and employers. This contrasts to a mediation where the emphasis is on one party,

Interestingly the approach of Acas is to offer the parties recommendations designed to settle the dispute. Although these recommendations are not binding, parties are expected to seriously consider them as a basis for resolving the dispute.

When we are instructed to deal with a collective mediation, we may or may not have a format which allows for recommendations. That is something to agree with the parties. The advantage of using an employment lawyer within a collective mediation is that if they give recommendations their word has more force as they have more legal knowledge.

A Guide For Trade Unions appears here:

There has been much discussion about the Baby P case and Sharon Shoesmith's successful application to the Court with the ruling which in effect it reinstates her.  

Compensation and legal costs in the two-year case could cost the council and the government more than £1m, although ministers have said they will seek approval from the supreme court to appeal.

Although the ruling said compensation was a matter for Shoesmith and the council, it added that "it would be entirely appropriate for Haringey to seek a voluntary contribution from the secretary for state whose unlawful directions gave rise to the problems".

This stemmed from her sacking by the old Childrens' Secretary, Ed Balls prior to the last general election. 

Some observations.

1 It is possible that Ed Balls would not have sacked Sharon Shoesmith had it not been the fact that we were so close to a general election. The current prime minister supports an appeal. In this case, it is more important for the politicians to be seen to be doing something rather than doing the right thing which dare I say is to comply with employment law. No one has put up a sustainable argument for her sacking being legal. Frankly her sacking was a model in how not to do it, but if we please the Sun newspaper, who cares?

2 Sharon Shoesmith may have had to go through an expensive litigation but she has successfully deflected some attention away from her incompetence at her job. I suspect that obtaining money is not the only objective of the litigation.

The real losers(apart from the child) are future children because there is lack of discussion in how a death will not happen again and the taxpayers who will pay legal costs and  the compensation be that £600k/£1 million. Resources were wasted on the litigation such as management costs.The blame game counts.

As an aside, I doubt whether any negotiations took place. It may have been helpful that the a mediator appointed to sort out the mess which Balls(provoked by Cameron and the press) created. The problem with this dispute is that it will run and run. Legal costs could be huge.

Overall one of the problems of employment cases is the lack of incentives for parties to settle.

Justin Patten, Employment Solicitor and Mediator    

A professional whom I respect is Tim Kevan who has recently seen his latest book, Law and Peace published in paperback. 

From a personal perspective I have worked with Tim in helping create a mediation resource for his business,Law Brief Publishing. Tim was a barrister for many years but now has writing and business interests. He has been supportive of my work.

The book, which is breezy and light is Law and Peace and focuses on the trials and tribulations of barrister, BabyBarista has already received a lot of praise such as 'A wonderful, racing read - well-drawn, smartly plotted and laugh out loud ... You'll never look at a young lawyer in the same way again' from Jeremy Vine. 

BabyBarista may have won the battle for tenancy, but the war has just begun. In his pupilage year, BabyBarista learned the hard way that dirty tricks and a faulty moral compass are essential items in a young lawyer's briefcase. Now, as the newest tenant in chambers, he must face down old enemies, try to win compensation for a group of ASBO-attracting pensioners, and unravel the complicated knots of his love life - not to mention his mother's finances.

For more information, please click here.

Justin Patten, Solicitor

The Post Online reports that the preliminary results of a survey of mediation in commercial insurance disputes by the UK-based law firm Davies Arnold Cooper show a success rate significantly lower than the latest 75-80% reported by the Centre for Effective Dispute Resolution.

More than a third of the nearly 100 initial respondents to the survey were only "sometimes" happy with settlements, with, overall, doubts about mediation's cost-effectiveness and its appropriate use and about the performance of mediators.

Like in personal injury, mediation - despite rising costs, partly because of more use of lawyers - can be faster and cheaper than going to court but it is one of the more expensive means of resolving disputes.

Of course as Nick Young of the firm points out there are other options to settling a case this can include the parties negotiating "without prejudice" over a cup or tea and a sticky bun.
Useful points.

From my perspective, ways to settle an employment case apart from mediation/going to Court include:

1 Communicating to the other side in an open way being candid about own weaknesses; sometimes this an effective negotiation tool as it illustrates your commitment to the truth as opposed to the partisan approach of the other side. Sometimes this can be an effective tool in putting a barrier betwee the client and the other side's lawyer.

2 Use Acas.

3 Make a bottom line offer with a time deadline, carrot and stick approach. You can make a dramatic concession but also include threat as well.

4 Get much more input than is usual from the client so the letter becomes a client written letter with minor dressing up from the lawyer. This allows the client to vent off steam but has to be carefully managed so that it dos not become inflammatory.

5 Ask for a mutually respected party to try to settle the case. A family friend/old boss.Cheaper than a mediator but maybe not so skilled?

All this is under the heading of managing complex communication.

Other points worth noting from the DAC research is:

1 Mediation success figures may be overstated. I tend to agree.

2 Quality of mediators remains an issue. If you have a community(mediation) which has 5 days training to become accredited, can you say that you are surprised? This is ignored by the mediation community.

3 Is mediation cost effective? For higher value disputes, tends to be cost effective but factor in preparation costs. For employment cases(my forte) you may need a Compromise Agreement which can lead to added costs. Mediators need to price accordingly. Again, training does not factor this.

Justin Patten, Mediator