Latest Blog posts from Human-law.co.uk

Five Ways To Dismiss An Elderly Worker

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We live in somewhat interesting times with a rising elderly population, a difficult economy, but also organisations are increasingly having to grapple with what they perceive to be complex employment law in the area of managing elderly employees.

Recently the government repealed the default retirement age and two recent law cases have added more confusion.

Sadly, on occasions firms do have to go through redundancy or dismissal steps against elderly workers, but how do you go about doing it?

With employees ever willing to assert their legal rights, is it virtually impossible to do so without being sued?

Here are some principles to minimise that prospect.

1 Recognise that the law is complex - For example, recently the default retirement age was made unlawful as being discrimination on the grounds of age. However, in contrast to other forms of discrimination, it is possible to justify both direct and indirect age discrimination. Organisations can retain a default retirement age, or age discriminate in other ways, if they can show that the discrimination is "a proportionate means of achieving a legitimate aim."

2. Take advice. The new case law reinforces legal complexity. The Supreme Court has recently ruled that organisations can still justify direct age discrimination if there is a legitimate aim in the public interest, and the individual aims of the employer are chosen to be both appropriate and necessary. This will involve considering whether there are other, less discriminatory measures which could achieve the same aim. Sadly, the law is still complex and in my view will promote litigation. It is critical that you take advice.

3. For practical steps, look at your employees' employment contracts. Do they still contain a default retirement age? If so, can you objectively justify it by reference to a social policy aims of intergenerational fairness or dignity? Would an older age be a more proportionate legal aim? What do other organisations do in your line of work? Take a step back and look at the wider picture.

4. Speak to your workers. Have conversations with your employees of all ages about their future plans. These conversations can form part of the appraisal process and can enable you to establish the likelihood of a legal dispute arising. If things do start to go awry, at least you are prepared.

5. Consider mediation. In cases like this where the parties can’t agree and emotions start to come into play getting the parties around a table, facilitated by a skilled mediator can really help. In this instance the earlier the better. Mediation could have avoided significant costs and might have enabled the worker retain some personal dignity and the employer could have been seen in a much better light.. Mediation does tend to work and if things go wrong.

Justin Patten, Employment Mediator

What Rights Do You Have to Check Your Workers Facebook Page?

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Aaah... technology....The joys of using social media such as Twitter, Linked, Blogs and Facebook.

Facebook like other forms of social media allows individuals and businesses to communicate like never before. However, it also shows the increased blurring between individuals work and private lives particularly where staff write in a negative way about their employers.

Employees have always said and written things about their bosses and their workplaces but with Facebook news can travel really fast.

All employers now face a dilemma- On the one hand you want to protect your reputation and your business interests. On the other hand there is increased regulation and yes, your staff are entitled to a private life and to express themselves.

Many of your staff will use Facebook but what rights do you have to look at individuals Facebook pages?

The issue was partly considered in a recent case involving a bar manager who was sacked by her employer, Wetherspoons.

Briefly Ms Preece was subjected to a level of verbal abuse and physical threats from a number of clients including two regulars. While still at work Ms Preece vented her anger on her Facebook page from her phone and actually named the two regulars. Unfortunately the comments were seen by the regulars' daughter who made a complaint and this led to Ms Preece being sacked.

Ms Preece took the matter to Employment Tribunal but lost.

Social media is a new area of law but some principles can be applied.

1 The Courts will have to apply balance between right of expression (in this instance the Employee's right) and the Employer's rights. Article 10 of the European Convention on Human Rights provides a right to freedom of expression, but qualifies this with "the protection of the reputation of rights of others." Therefore the employee will not have carte blanche to criticise his or her employer on the Facebook page.

2 Employers must have policies and Contract to protect themselves. In the Preece case Wetherspoons had both a social media policy and a relevant clause in the contract of employment. A company will have greater rights to look at a Facebook page if there is something written to refer to. No policy will mean less right to look at Facebook pages.

3 Employee's conduct will be critical. Despite being severely provoked, Ms Preece was not helped by the fact that her Facebook settings were not private and more than 600 people had access to the messages and the fact that she was posting messages while still at work. If an employee were to post on a private Facebook page outside working hours, the right of the employer to consider it is much less.

4 Fair Investigations will be pivotal. Even if the dentist does have the right to see the Facebook page, it has to respect employment law such as fair investigations and allowing employees to bring colleagues.

Justin Patten, Solicitor and Mediator

Employers Face Greater Risk Than Ever of Being Sued By Depressed Workers

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In my capacity as a lawyer and mediator, I am coming across a greater number of workers who are depressed(often taking anti-depressants) and alleging unfair dismissal and discrimination against organisations.

There seem to be four reasons for this shift, namely:

1 Greater willingness of individuals to sue. I do not think we are as bad as America but clearly we are within a culture where individuals are more likely to assert their rights.

2. A higher level of knowledge about depression, and mental health issues being less of a stigma.

3. The legislation and case law giving greater ability to make a claim.

4. Widespread ignorance of the law by employers of individuals.

Recently as an employment lawyer, I was instructed by a worker who was not employed but was dismissed as an agency worker. e.g she had no qualifying service.

When she disclosed to her organisation that she was depressed the organisation was unsympathetic and sacked her when she was too ill to come into work. The problem for the organisation is that they are breach of the Equality Act meaning that discrimination has taken place and for the purposes of the legislation, she can sue. What is striking is that the organisation and the agency were really ignorant about the law.

Some useful guidance on the Equality Act is here:

http://odi.dwp.gov.uk/docs/wor/new/ea-guide.pdf

Watch this space; the issue of the depressed litigant is going to grow and grow.

Justin Patten, Consultant Solicitor and Mediator

Could The Unfair Dismissal Rules Be Scrapped?

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We live in both a more litigious environment but also an economy struggling.

With this in mind it is perhaps unsurprising that last weekend, the Sunday Times said in an editorial that proposals by private equity millionaire Adrian Beecroft for a hire and fire business culture, published last year, should be dusted off and implemented without delay.

http://www.guardian.co.uk/politics/economics-blog/2012/apr/29/zombie-economics-less-respect?newsfeed=true

You may recall that Mr Beecroft called for the laws of unfair dismissal to be scrapped.

With the UK economy in trouble I have asked a number of lawyers what they think and generally the feedback is adamant. The rules on an unfair dismissal are such a cornerstone of Uk law and the fact that reforming them would not improve economy; therefore no change.

But I am not so sure. Across Europe with economies struggling we are seeing a political climate where the centre is being eroded and extremism is rising.

Is is completely beyound the realms of possibilty that in one year's time the UK economy is still struggling? As politicians search for solutions is it not possible that they could look to search for more radical solutions?

Is it not fashionable to blame lawyers for problems and it is well known that the government is seeking to reform the Employment Tribunals.

In my opinion the government is perhaps too clever and too restricted(by lack of majority in Parliament)to abolish unfair dismissals, but there are different ways to skin a cat. The key is to dis-incentivise Claimants.

You can implement Court fees rather than allow Claimants to sue for free, you could implement compulsory mediation (if Acas could cope which is unlikely) and you can implement costs awards against both Claimants and Respondents. Whilst these would be applied against both parties, Claimants would suffer more as there would be more to lose.

So,whilst employment lawyers may take heart from the fact that unfair dismissal is unlikely to be scrapped the politicians will search for other ways to reduce our clogging Tribunal system. The problem for the government is that they are so slow to do anything it may just take some time to implement change.

Rising Number of Elderly Workers Unemployed

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According to the Telegraph today, there is a growing number of over-50s who struggled to get work after being made redundant. Of the 426,000 older workers unemployed, 189,000 have been without jobs for a year or more and 111,000 for at least two years. This compares with a drop in the total number of people of all age groups in long-term unemployment.

Michelle Mitchell, of charity Age UK, has called for direct help to support older workers back into jobs and said employers were missing out on a huge range of skills and experience that could help them grow.

"This disturbing jump in the number of long-term unemployed older workers is a clear signal that the Government needs to take more action to help this age group, particularly at a time when it has raised the state pension age," she said.

I believe that this data highlights the de facto discriimination of elderly workers in the workplace. The problem is that elderly workers run the risk of being permanently unemployed. Once your out, there may be no way back.

Justin Patten

Mediator

Court of Protection - Legal Problems Manifest

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Quite an interesting piece in the weekend's Telegraph about one of the key issues of our time.

Mr Justice Hedley said the 29 year-old, who is autistic and has an IQ of 64, lacked the mental capacity to consent to having sex and so made the “very restrictive” order to protect her best interests.

He said she had previously engaged in risky behaviour with a number of people because she did not understand she could say no, and that she should be protected from “potentially exploitative and damaging” relations in future.

The order not only means she is prevented from having sex, but also means anyone who tried to have intercourse with her could be charged with sexual assault or rape.

Mr Justice Hedley said: “It is strange, but nevertheless true, that even the freedom to make unwise decisions is one that the court is required to guard and only to restrict if and when the best interests of [the woman] so require.”

As the Telegraph writes, it is the latest in a series of complex ethical cases to come before the Court of Protection, which has the power to make far-reaching decisions about the financial affairs and welfare of people deemed to lack mental capacity.

From a legal perspective this brings into the forefront the importance of the Mental Capacity Act, one of the key pieces of legislation.

Justin Patten, Solicitor

Age Discrimination Directly Impacts Retirement Provisions

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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

The Rise of The Poor Elderly Worker - What Are The Key Legal Issues?

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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 - Are you ready?

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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

Internal Disciplinaries - Should Employees Have Legal Representation?

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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