Speaking Philosophically about the Bahrain Grand Prix

There has been a lot of coverage in the press about whether the Bahrain Grand Prix should go ahead this weekend due to the pro-democracy protests that are taking place in the country. This coverage has however made little mention of the decision of Williams Formula 1 team to dismiss a member of their catering staff because she refused to travel to Bahrain on moral grounds.

Very few facts relating to the dismissal of this employee are in the public domain but it is understood that Williams took the decision to dismiss her because she was contracted to work at all 20 races of the F1 season and by refusing to work at the Bahrain Grand Prix she had breached her contract. If the employee had only started working for Williams at the start of the F1 season she would not have been able to make a claim of unfair dismissal as she did not have the required length of service, but could she instead made a claim that she dismissal was an act of discrimination due to her philosophical beliefs?

Since 2003 employees have been entitled to protection from discrimination on the grounds of their philosophical beliefs. The meaning of “philosophical beliefs” has been the subject of scrutiny by the Employment Tribunal system. There have been some surprising results with various Tribunals finding that beliefs in climate change, anti-fox-hunting, and public service broadcasting amounted to philosophical beliefs that were entitled to protection under the Equality Act. It is not clear what the “moral grounds” were for the employee not to want to travel to Bahrain but if it was a belief in democracy and/or human rights then these are likely to be classed as philosophical beliefs that should be protected.  

So how could Williams argue that the decision to dismiss the employee was not discriminatory? The case of Grainger Plc & others v Nicholson (which found that a belief in climate change could be considered a philosophical belief) set out a list of principles which should be applied to decide if a belief should be subject to the protection of the law. This list included whether the belief held was genuinely held and also whether it had a certain level of certainty or cohesion. If the employee had worked at the Chinese Grand Prix which took place the previous weekend then the genuineness and cohesion of her beliefs could be challenged as she would be questioned why she worked in a country (China) which is governed by one party and has an appalling human rights record but did not feel that she could work in Bahrain. This would potentially create difficulties for the employee if she made a tribunal claim.

As I said above, the facts in the public domain regarding the decision to dismiss this employee are limited. Williams described her departure as being by mutual consent so it may be the case that some form of settlement was reached; however, the dismissal of this employee does highlight the need for businesses to be careful when dealing with an employee who objects to being asked to do something that they feel is immoral.

Bad Management of Football Managers is Bad Financial Management

The administrators at Portsmouth Football Club have published their report this week. It states that Portsmouth have debts in the region of £58 million. There are plenty of other football clubs who have found themselves in administration including Portsmouth’s local rivals Southampton FC, Plymouth Argyle (my team!) and most recently Glasgow Rangers. So how have these clubs got themselves into such trouble?

The cost of dismissing the manager is one contributing factor. It is often very likely that if a sacked football manager was to make a claim of unfair dismissal they would probably have very good prospects of success. This means that more often than not they will be paid off by the club.

Football managers are very well paid and are usually on contracts for a fixed term of 3 to 5 years. If the club decides to dismiss a manager after only a short period they are potentially liable to pay the manager the balance of his contract. They can argue that the manager should try and minimise his losses by finding alternative employment and there is usually horse trading between the club and the manager as to how much the settlement should be but it is the case that such a settlement can run into hundreds of thousands of pounds. It is arguable that dismissing the manager can actually be doing the club more harm financially than keeping him on.

What is also often forgotten is that when a manager is dismissed the rest of the coaching staff (who have often come with the manager) will often be dismissed as well meaning that there will be potentially more compromise agreements being handed out. This means that a club with a lot of outgoing managers will quickly find that a lot of money is leaving with them.  

Since Harry Redknapp left Portsmouth in 2008 there have been ten managers at the club and since he left Southampton in 2005 there have been eight managers. This cannot have helped the either club’s finances. There are other reasons for clubs going into administration such as players’ wages and general financial mismanagement; however, having a high turnover of managers cannot have helped both for footballing and financial reasons.

How Cardiff Blues Tackled Henson

Welsh rugby international Gavin Henson was dismissed by his employers Cardiff Blues today following his misbehaving on a plane from Glasgow to Cardiff last Saturday morning. There has been plenty of comment in the rugby press about his departure (one that was particularly good was by Brian Moore); however, from an employers’ point of view how easy was it for the Blues to sack Henson?

The reality was that it was fairly easy for the club to do this. Henson was travelling back from Glasgow having played for the Blues the previous evening. He was in all likelihood travelling back with the rest of the squad on a flight paid for by the club. If this was the case it can easily be argued that at the time of the incident he was “on duty” with Cardiff. I would also be very surprised if there was not a clause in his contract that said he should not do anything that would bring the club’s name into disrepute.

By misbehaving on the flight in such circumstances, Henson had created the perfect storm for himself making it very easy for the club to dismiss him on the grounds of gross misconduct. Henson’s best argument may have been that his behaviour on the plane had not amounted to gross misconduct; however, while what did or did not happen on the plane may have be open to speculation, Henson publicly apologised for his actions indicating that his misbehaviour was serious in nature. Further, Henson being banned by Flybe for six months would not help this argument.

In any event, Henson had only been with the Blues since the start of this season meaning that he did not have the one years’ service (two years from 6 April 2012) required to make a claim of unfair dismissal. He could still claim wrongful dismissal but if successful that would only entitle him to the monies that he would have received had he been given the notice that he was entitled to under his contract.

In reality Henson is unlikely to be making a claim against the Blues and instead will be getting his agent to start contacting potential employers. Maybe we will see him on I’m a Celebrity …..  

My Budget Non-Response

Unlike last years budget where George Osborne confirmed that the one year qualifying period to make a claim for unfair dismissal would be increased to two years there was very little for employment lawyers to get excited about. The announcement of most interest to employment lawyers (well it was not really announced but could be found contained within all the paperwork issued by the treasury to accompany the budget speech) was that the consultation on Employment Tribunal Fees would end on 17 July 2012 before the summer recess. This announcement was in reality not particularly exciting anyway.

One of the main aims of the budget was to encourage growth within the economy. One way to boost the economy is to try and get more people back into work. Unemployment stands at 8.7% of the working population up from 8.4% last year so there was a need for the Chancellor to come up with incentives for employers to take people on. Arguably the cut in corporation tax from 25% to 24% in April with two further cuts to bring it down to 22% by 2014 will mean that Companies will have more to spend on other things including taking on more staff although this is in no way guaranteed.

From an employees point of view the increase in the personal allowance will clearly be of benefit to employee, particularly to those who are lower-paid. It remains to be seen however whether inflation will mean that the gains from the increase will be wiped out.

Ultimately everyone seemed to know what the contents of the budget would be so much of the comment had been made beforehand and from an Employment Law point of view there was very little that could be said anyway!

Moving On Up!

I have been somewhat slack recently in terms of posting on my blog recently. This is because there have been a lot of changes recently in my work life so I have been dealing with them rather than blogging on here.

I am now in the process of setting up my own practice in Southampton through Fox Whitfield solicitors. Fox Whitfield is a niche employment firm advising on employment law only. All the solicitors at Fox Whitfield are over 5 years qualified and the way that the firm is structured with sattelite offices around the country means that we are able to keep our fees down while still providing a high quality of service. Due to the wonders of modern technology we are still able to discuss any difficult cases that we may have and pass on work to each other when we are at full capacity in the same way that any conventional firm would.

I have therefore been getting everything ready to practice. I have managed to get an office at the University of Southampton Science Park. It is a great location with lots of other businesses around of varying sizes. It is close to the M3, the airport, the train station and there is plenty of free parking for clients. There is also a nice cafe there as well!

One big difference between setting up your own practice and being employed is that when you are employed you turn up at work on your first day and you are given a desk, chair, telephone and a PC as the basic minimum. When you are setting up you have to bring your own desk, chair etc. with you to go in your office. I have therefore spent the last few days getting office furniture to go in my office. I found a good supplier in Chandlers Ford called Haywood Office Services who were very helpful and good value too.

I am now in the process of marketing. I am trying to get the Fox Whitfield name out there by attending networking events, using Twitter and Linkedin and also by blogging.

Hopefully this hard work will pay off. At times it can be very daunting; however, it is also very exciting too!

Now I just need to get some clients........

Top 10 Employment issues of 2011

Now is the season when the media starts looking back over the last 12 months and makes lists of significant events or achievements. Without wanting to be left out, here are, in no particular order, our list of the big employment issues of 2011:-

1)     The Royal Wedding – this was the most searched term on Google this year but the wedding also raised the question as to whether employers had to give employees time off to watch the happy occasion. This is likely to be an issue again next year when we get an extra bank holiday for the Diamond Jubilee.

2)     Auto-Enrolment for Pension Schemes – The government slowed the requirement for employers to auto-enrol their employees into a pension scheme by announcing that employers with fewer than 50 employees are no longer required to comply with the current deadline of September 2012 to enrol their employees and will now have until either May 2015 or September 2016.

3)     The Introduction of Employment Tribunal Fees - The government announced that it is seeking to charge fees in the employment tribunal. The proposed fees are between £200 and £1,750 to issue a claim with other fees payable for applications and listing claims for a full hearing. The consultation  closes in March 2012.    

4)     Scrapping of the Default Retirement Age – The default retirement age of 65 years has now been phased out and employers will have the difficult task of justifying any fixed retirement age that they seek to have in place. Alternatively they will have to consider other reasons to dismiss such as capability or redundancy.

5)     Sickness and Holiday Pay – The European Court of Justice case of KHS AG v Schulte  has been a favourable from an employers point of view as the court found that there cannot be an indefinite carry over of holiday entitlement where employees are on long term sick leave. 

6)     Pension Dispute with Public Sector Workers – Public sector workers resistance to government proposals to reform their pensions culminated in a mass strike on 30 November with teachers, NHS workers and local government workers all walking out that day. Talks are still ongoing and progress is apparently being made but to date no final agreement has been reached.

7)     New paternity leave provisions – Parents can now share maternity leave with the father being able to take up to 26 weeks of any maternity leave that is untaken by the mother.

8)     Agency Workers Regulations – After 12 weeks service agency workers are now entitled to the same rights as their permanent counterparts in respect of pay, working time, rest breaks, night work and annual leave.

9)     The requirement for two years service before an employee can claim unfair dismissal - This is a big change in employment law as from April employers can dismiss employees with less than two years’ service (as opposed to the current requirement of one year’s service) without needing a fair reason  - as long as the reason is not discriminatory. 

And finally:…

10) Carry on Nurse!  - The case of the senior staff nurse who was found to have been unfairly dismissed for making a suggestive remark after she had to sit on top of a naked patient so that he could be administered his medication was arguably the most amusing employment case of the year.

My latest article!

	The Manufacturer's Monthly - November 2011
	Changes to unfair dismissal legislation - An employer benefit? The Chancellor, George Osborne, announced in October that in an effort to reduce the number of employment tribunal claims being made and 'red tape' for employers, the qualifying period that an employee must work for their employer before being able to make a claim of unfair dismissal would be increased from one year to two years. and that there would be a requirement for the Claimant to pay a fee when making a claim to the employment tribunal. Trade unions cried foul over these changes but how beneficial will they be to manufacturers? Unfair dismissal The increase of the qualifying period from one year to two years before an employee can make a claim of unfair dismissal is likely to be welcomed by a majority of manufacturers. By increasing the qualifying period businesses will have a longer period within which they can dismiss an employee without risking a claim of unfair dismissal. This clearly gives more control back to the manufacturers but would this reduce the number of unfair dismissal claims that will be made? It could therefore be the case that increasing the qualifying period will not actually have a significant impact on the number of claims of unfair dismissal, as there would be plenty of employees with over 2 years service who could still claim. The benefits of this change could be hampered by the fact that there is no qualifying period for employees to make claims of discrimination. Former employees regularly make claims that their dismissal was an act of discrimination (on the grounds of race, disability, gender etc). The lack of a qualifying period for discrimination claims means that such claims can still be made. The government is also unable to introduce any such qualifying period for discrimination claims as these are derived from European Directives. There has actually already been a drop in the number of unfair dismissal claims made to the Employment Tribunal from 57,400 in 2009/2010 to 47,900 in 2010/2011. These statistics could indicate that increasingly employers are dismissing people in a correct manner. Arguably the best way to avoid a claim of unfair dismissal is for a manufacturer to have clear dismissal procedures in place, and to follow these when considering whether or not to dismiss an employee rather than relying on the changes to unfair dismissal legislation. Employment tribunal fees It is understood, although not confirmed, that the fee for lodging an employment tribunal claim will be in the region of £250 with a further £1,000 fee that will also be payable by the claimant when the claim is listed for a hearing. These fees will be repaid if the claimant is successful. It is also thought that claimants who have no income will not have to pay the fees. It is difficult to dispute that a fee will make potential litigants think carefully before making a claim to the tribunal. Further, the £1,000 listing fee may encourage early settlement of a claim before the matter is listed for hearing. However, the exemption from paying fees by claimants who have no income may render the deterrent nature of the fee impotent. It is not beyond the bounds of credibility that someone who is making a claim of unfair dismissal will not have a job at the time that they make a claim, and so will be exempt from paying a fee meaning that tribunal claims will still be able to be lodged with relative ease by many claimants. It has been argued that tribunal fees will prevent vexatious litigants. The problem with this argument is that vexatious litigants by their very nature can be particularly determined to see their former employer in court no matter what the cost. While the potential tribunal fees may be a significant expense, often these types of litigants will find a way to pay as their sole intention is to make life as difficult as possible for their former employer. It is likely that the effectiveness of the fees as a deterrent will be dependant on the level of the fees and to whom the exemption on paying fees will apply. Tribunal fees will in all likelihood reduce the number of claims being made but perhaps by not as many as the government hopes. Conclusion The increase in the qualifying period to claim unfair dismissal and the introduction of tribunal fees is probably going to reduce the number of claims made to the Employment tribunal. It is, however, open to debate as to how significant this reduction will be. These changes also do not deal with the expense that is incurred by the employer in terms of legal fees and loss of management and staff time when a claim is made. So, manufacturers should ensure they have clear dismissal procedures in place. The changes to unfair dismissal legislation will have some impact but manufacturers are well advised to follow their own procedures having first ensured that they are as fit for purpose as can be. Please contact Andrew Browning, associate, on 023 8083 1205. Contact us Please contact Andrew Browning, associate, or call 023 8083 1205. Alternatively, contact Andrew Jackson, partner and member of our manufacturing sector group or call 01635 571077. Related links Visit our website Meet the manufacturing & logistics team Add a colleague If you think this ebulletin would be of interest to a colleague and would like to add their name to our mailing list, please email Simon Bomford with their contact details. Unsubscribe If you would like to unsubscribe to the Manufacturer's Monthly, please email Simon Bomford. Disclaimer The contents of this brochure are intended as guidelines for clients and other readers. It is not a substitute for considered advice on specific issues. Consequently, we cannot accept any responsibility for this information or for any errors or omissions. Thomas Eggar LLP is a limited liability partnership registered in England and Wales under registered number OC326278 whose registered office is at The Corn Exchange, Baffin's Lane, Chichester, West Sussex, PO19 1GE. The word "partner" refers to a member of the LLP, or an employee or consultant with equivalent standing and qualifications. A list of the members of the LLP is displayed at the above address, together with a list of those non-members who are designated as partners. Authorised and regulated by the Solicitors Regulation Authority. Lexcel and Investors in People accredited.   Chichester Gatwick London Newbury Southampton Worthing Call 0870 160 1300

 

 

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