Peter Browning's newest comments

For those of you who are "with the judge" on this issue, you may yet perhaps feel able to answer my original question - "Did the punishment fit the crime ?"... In so doing, you might also perhaps feel able to bear in mind the resultant devastation of the career of someone whose work might be regarded as rather more important to society than, say, a pop star or a footballer. In the unlikely event that, say, Wayne Rooney was sacked for telling his team-colleagues that God was on their side, just imagine the public outcry ! Forgive me but, on the original facts as stated, I still think that the judge was out of order.

Sorry, Judge David Kearsley, I have not seen your ruling in detail but, from this report, I think you've undercooked your judgment. Why ? Well, you state ..." if complaints were made about Muslim or Hindu doctors who had quoted from holy texts, they too would be asked to refrain from such behaviour".

The Applicant in this case is not reported to have been asked to "refrain from such behaviour", he was culled from what must otherwise have been a valuable career, apparently for trying to do his best, within his personal ethos, to get his team motivated.

For that otherwise laudable intent, his career has been devastated. My question thus, admittedly based upon a sparse report, is "Did the punishment fit the crime ? ". On the information given, no, it did not. Woe betide those who get a bit too enthusiastic about motivating their teams, choose only politically pure platitudes, and you just might survive.

An interesting question, Ron, and I wish I could help. I can only guess but, knowing the way the UK legal system is run these days, I would think that the landlord can only 'delegate' responsibility, but cannot delegate ultimate liability under H & S. There is of course the prospect of being able to sue for breach of contract but that may not help if the property manager were a 'man of straw' as they used to say, or one who had inadequate professional insurance. As 'Worried from Tonbridge Wells' might say, is this not a situation where a recorded six monthly or annual check would be the belt and braces way of proving reasonable diligence ?

The Employment Lawyers Association declares itself “disappointed” about the decision to introduce fees. One is led to wonder if its Members are here concerned as much with the 'disadvantaged' as they might be about the literally hundreds of pounds per hour, plus disbursements and refreshers, that are charged every day to hard pressed litigants, whether they be claimant or respondent.
As both a layman and a pensioner, I find it impossible to understand why, in this technological day and age where electronic communication allows reduced research costs and instant updating of both statute and common law, that starting prices, even in the provinces, are around £200 per hour and, for senior partners, £250 per hour, and about double that for a provincial Counsel. Goodness knows what the big city fees are these days, eye-watering I suspect.
One might perhaps be forgiven for suggesting that if this Lawyer Association were seriously worried about the disadvantaged, it might give further thought as to how it might improve and widen the availability of "pro bono" support for them.

Thankyou for the clarification Bozena, the moral of the story being "do not include PILON within the terms of the contract of employment". Otherwise the advantages of thisexit-option will be lost.

Nonny first wrote "When we collected the personnel files there were two employees who were not included on the due diligence information".

The due diligence would thus appear to have been a misleading process, and one would have thought there should be a good case for asking the vendor(s) of the company to stand up and be counted for their failure. However, before spending treasure on that issue, a fine-tooth comb, please, through the terms of the contract for sale to see what 'exclusions of liability' it contained. The omission of one employee might have been an accident, but omitting two seems much more like negligence...

I am not a lawyer BUT my understanding is that 'Pay in Lieu of Notice' is, in reality, a calculated compensation for breach of contract, i.e. - the employer offers a sum of money to the employee if he or she is prepared to leave service immediately.

There are two specific attractions in this for the employee. Firstly, of course, an opportunity to start work elsewhere but, secondly, because the payment is in fact 'compensation' and not emolument, then it falls to be paid tax free and NHI free. That certainly used to be the case, and I have not seen anything to the contrary and it would make 'pay in lieu of notice' rather more attractive, particularly to the higher-rate tax-payers. Well worth thinking about...

I have two problems with the Judgment in this case. Writing from well over 20 years direct experience in a smaller but equally "not for profit" (i.e. charitable) team working with learning-disabled people, the penalty seems more than harsh. My first problem is, of course, that I cannot know the infinite detail of the incident where this care-worker was injured, and the second is that there is no information in this report regarding any 'defence' that was served upon the Court by the defendant. However, I restate - the penalty seems more than harsh. Why ? A penalty at that level would certainly have bankrupted the charity with which I was connected, thus casting into the unknown seventeen highly dependent Residents. The loss of £44,000 would certainly destabilise financially most such charitable groups, and will discourage the provision of vital services to those vulnerable people most in need. Surely, the same warning would have been achieved with a penalty of half that sum. What about the injured employee ? Again from first hand experience, I have every sympathy, but the only helpful remedy available is a claim upon the Employer Liability insurance policy. It would appear to me that the Judge perhaps ought to have looked a bit further than the Court Room.

I agree with Wayne (not Nick !! ) but please do make sure that you make one more recorded delivery sending to this person. In this letter, you ought to confirm that, on the said date, (i.e. the date he telephoned) he confirmed that he had terminated his employment with the company and, accordingly, you enclose herewith his P45 and best wishes for success in his future career.

It seems to me, Ceiran, that you have now done the right thing. You have asked the advice of ACAS (hopefully you made a note of the name of the ACAS person, the time, and the date) and it would be unlikely that any Tribunal would criticise you for seeking that advice. Ask the employee into the office for an interview. If that's refused, offer to visit him at home at a time of your choosing. Give him the opportunity to make his case (with a colleague to help him if requested) and, more important, to see a doctor appointed by the Company. If he refuses, that would be unreasonable and, in my view, you would have done all that you reasonably could, but are left with no alternative but to dismiss, not only on the grounds of capability but also upon the organisational effect upon your firm's small but busy team.

If it happens that he agrees to see the company Doctor, there are two likely outcomes : 1) There is a compelling reason for continued absence. Then it seems to me perfectly reasonable in a small firm to dismiss for capability and for the organisational reasons.
2) The Doctor fimds that the employee is fit for duty, even if on an initially reduced scale. In that event, you would need to monitor performance in view of complaints, but if he cannot meet your required standard, then dismiss, with lack of capability being the reason. Either way, you need, I believe, to get on with it.
Regards, Peter.

Sadly, Wayne, I wouldn't put even that past some people. Injuring oneself to keep one's job surely is a novel idea, but not beyond those who are ready to "bad back" their way into disability allowances. Once successful, they book themselves into weight lifting contests, get filmed doing so, and then get prosecuted. Daft, but it's the kind of thing that's happened often enough to become a cottage industry. In the matter that triggered this debate, it seems to me that it ought to have been dealt with much earlier, which might then have avoided the difficult route that Chris has just outlined above. Regards, Peter

Hullo Wayne
With the law being the ass that it frequently is, I think the possibility exists that the individual might seek to claim permanent disability of the use of his hand. If that be the case, then I believe the usual 12 month moratorium would not apply. The manner in which this particular case is progressing does suggest to me a rather longer game than at first apparent and again, I think that I would want to cover all angles. Perhaps that's being over-cautious but, as we know, disability discrimination can lead to a severe smacking.
Regards, Peter.

Hullo Cieran
I think the one hurdle you'll need to watch is the one called disability discrimination and, for that reason, I would suggest that you first get advice in detail from ACAS and then ask a properly qualified employment Soclicitor to draft the necessary 'thankyou and best wishes in your future career' letter. My opinion, based upon what you write, is that you've tried to be fair, and you've held on a bit too long already, so get moving.

Hullo John,
This (surprise surprise) comes under the heading of reasonableness, and the terms of the agreement to which you refer are critical. Speaking from practical experience, I know of a case where a term of employment which stipulated that a person leaving could not work for a competitor within a defined geographical area was found to be unreasonable - a restraint of trade - because of the fifteen miles defined. Your issue is slightly different but again, much will depend upon what is in the agreement, assuming that it was a written agreement. My personal view, for what it is worth, is that wherever a member of staff deliberately breaches a term of an agreement, every effort should be made to apply redress, but the courts are (it seems to me, always) reluctant to penalise someone seeking to earn a living.

It seems to me that, at the very least, you should make clear in writing to the person that, without prejudice to your rights as to what's happened, any repeat of the 'poaching' would immediately and without further notice result in civil action. Whether you ever take such action must be a matter of advice taken by you from a solicitor who has been fully appraised of the facts. Hope that's helpful, regards, Peter.

Here we are again - yet another stultifying jungle of regulation under discussion about the ubiquitous discrimination issue. We can now discriminate illegally on almost every aspect of employment, just when the country is crying out for employers to invest and invest and invest. It so happens, I detest toffee apples, they're so bad for my aged teeth, but shall I be discriminated against because of my detestation ?

Seriously, if this country is ever to recover its rightful place in the world's economy, we have got to remove some of the shackles that are holding it back. The Chinese Ambassador had it right - we are now hooked upon such a protective work-environment that we have become increasingly uncompetetive, whilst the only, repeat only solution to our economic woes is higher productivity. Yes, that will hurt, because it requires a bit less about me, and a bit more about us for a change.

What on earth can be wrong with a civilised and truthful discussion with an employee (any employee) about their future plans, especially if it is a part of an established annual review ? In the right environment, it works very well.

Let me illustrate : At my annual review within what was then a large company I felt able to say - "I want you to be aware that whilst I am definitely not resigning my post, I am certainly seeking another job but, meanwhile, you have my absolute assurance of total commitment and value for money". That sort of frankness led, many months later, to a very amicable parting. In the same terms, I would fully expect that employer to be able to ask me - "Look here old chap, we continue to be fully satisfied with your work but, on your 64th. birthday, it would be helpful for us to know what you hope to be doing"...

No offence given, and none taken.

Since the Employment Tribunal Service is a branch of HM Court Service is it not reasonable to suggest that parties should use exactly the same scale of fees as for the County Courts, which also have a remission-system for persons on benefits such as income support ?

If we've got to have fees, there is something to be said for standardisation. At least we would not have a mixture of fees to contend with, and, where necessary, the annual changes to the fee structure could easily be synchronised instead of spending costly officer-time in making and then promulgating separate sets of rules.

Methinks, Madam Hackett, that you have got your wires very badly crossed. You state that "Child protection and avoiding sexualisation of young girls is important" but, seemingly, you cannot perceive any danger in that process.

It is blatantly evident that teenage pregnancy and s.t.d's are a rapidly growing problem and yes, believe it or not, they are dangerous. Equally dangerous is the deliberate stimulation of natural responses to temptation which results from what Mr. Hampson describes as "very, very short skirts". The Head of the Academy is absolutely right, health and safety are both at issue here.

Madam Hackett is right to be worried about the mis-use of H & S legislation but has picked utterly the wrong target, and is sending out the wrong signal to schools who are struggling to contain the welfare of their students.

"Earlier this year a claim by John Berry for age discrimination against a recruitment agency was struck out after he failed to corroborate his identity as directed to. The judgment noted that it appeared that Mr Berry had previously brought 50 similar claims against various employers and described him as an “experienced litigant”. Mr Berry has not attended a any of the tribunal hearings".

So - we've caught one again, but what about the others ? Surely it is high time that the ET1 Claim Form should require the NI number of every Applicant, so that a simple computer programme could promptly identify the serial litigant. Meanwhile , these people pollute the pitch for the majority, shame upon them !

I agree with you, Linda, on two counts, first that the word reasonable is open to all sorts of interpretation. In the olden days, 'reasonable' was generally defined as being "what the man (person ?) on the Clapham Omnibus might think"... but today, with so many and varied voices clamouring to be heard, that definition is probably, er, unreasonable. WE HERE could start a whole new topic just like when back at school - we are asked today to write an essay with the title "What is the meaning of the term reasonable in the eyes of modern law ?".

I also agree on your main point, of course employers should try very hard to make adjustments to accommodate those with a disability. However, in the case under discussion, it would appear that the employee would not even give the offered adjustment a try, and that, in my view, was unreasonable.
Regards, Peter.

Hullo Nigel,
I am a little confused with your rather cryptic comments on this one. Given that we are told that her employer had offered to re-train this lady in a different position, which offer (we are told) the claimant had rejected, is there not some level of equity which proposes that she should at least have given it a try ? No-one could be sure of the capability issue of course, but it would perhaps be unlikely to have taken much time to find out...

My qualification for asking this question is that I have a very severely disabled daughter, but I cannot and do not expect the world to totally change to meet her needs, just a reasonable bit of trial and error, not always successful but, on the whole, very fair. Over to you, regards, Peter