MPs and Constructive Dismissal

MPs and Constructive Dismissal

One of the side products of this week’s decision by a group of Tory and Labour MPs to quit their parties and sit as an independent group was a somewhat heated discussion on parts of social media as to whether some of them, particularly Liverpool Wavertree MP Luciana Berger, would be able to claim constructive dismissal over their alleged treatment by their party organisations.

The first thing to say is that MPs are not employees of their political parties, so the simple answer is no. But as constructive dismissal is something that worries many small employers, it’s worth clarifying what it is – and isn’t.

Constructive dismissal is behaviour by the employer that is so awful that the employee can consider that they no longer have any trust or confidence in the organisation they work for and resigns as a consequence. It can be thought of in some respects as the opposite of gross misconduct (a situation where an employee commits an act that the employer can no longer have any trust or confidence in them, e.g. stealing, assault, leaking commercial secrets to a competitor etc).

It could be a single act by an employer, such as unilaterally reducing someone’s pay or demoting them to a lower grade. It might be humiliating someone in the presence of their colleagues and subordinates (this Gordon Ramsay clip is a good example – warning contains strong language). It can also be the final straw in a series of events which allows the person to conclude they can no longer work there.

It’s also worth remembering that an employer is responsible for the behaviour of their staff. So, if an organisation ignored or failed to deal with allegations of bullying, harassment, insulting or threatening behaviour against an individual employee by their colleagues, which then led to the individual resigning, they could be deemed to have constructively dismissed the employee.

Constructive dismissal isn’t a situation where an employer makes a decision that the employee is unhappy about (I’ve been asked questions about in the past about whether making someone move from a private to a shared office could be constructive dismissal for example – it wasn’t). And remember that if the person doesn’t resign there can be no constructive dismissal.

Constructive dismissal is also quite rare. There are, I think, two reasons for this. The first is that it takes a lot of courage, even in a very difficult situation, to simply walk out of a job.  The second is that to win a case at a tribunal, the onus is on the employee to show that the employer’s actions were such that they were justified in resigning, rather than a normal unfair dismissal where the onus is on the employer to show that its decision was fair and reasonable.  Even though the case is – like all employment matters – decided on the balance of probability (what the judge thinks is the most credible explanation of events) rather than the criminal standard of absolute proof, it still puts an additional hurdle in the way of a successful claim.

Based solely on the reports and social media postings I have seen, had she been an employee then Ms Berger certainly would have strong grounds for a claim. Whether she would have succeeded would have been up to a tribunal judge to decide. But it’s a useful reminder to employers that trying to ‘force’ someone  (or allowing colleagues to force them) out of an organisation can have far-reaching consequences.

Gordon Ramsay

ET Fees – what should small organisations do?

You’ve probably seen today’s news that the Supreme Court has ruled that the current Employment Tribunal fees system is unlawful, primarily because it denies individuals the ability to exercise the rights granted to them by Parliament. If you run a small business or charity, you may wonder what this means for you. Here are some key tips

  1. Don’t panic – today’s ruling simply restores the legal situation to what it was in 2013.
  2. Treat Employees legally and fairly – you should be doing this anyway, most employers already do. If you’re not sure exactly what you should be doing, my posts here and here may help
  3. If you do get a claim from someone relating to a past dismissal (or other issue), alleging they were unable to make a claim at the time due to the fees, seek advice immediately. 
  4. Don’t believe the hysterical nonsense in the Daily Mail (actually, that’s true of most employment law issues)
  5. See point 2

Managing a poor performer

The current UK General Election has flagged up an issue that concerns many small businesses – how do you manage a poorly performing employee without crossing the line into bullying or pushing the individual into going off sick, often with ill-defined ‘stress’.

It’s come into focus with the case of Diane Abbott, the Shadow Home Secretary. It’s been pretty clear to most people, including supporters of her own party, that she has had a disastrous election campaign, appearing not to know her own policies and struggling to answer basic questions. Given the importance of the role of Home Secretary – especially in the light of recent terrorist attacks – questioning her competence to do the job is legitimate.

But much of the criticism in recent days has been of a personal nature, and given that she is the highest profile black woman in UK politics there has been an undercurrent of racism and sexism to some of the criticism. She is, after all, not the only politician who has been exposed as not having a grasp of key policy details during the election campaign. The situation appears to have culminated in her going off sick for the remainder of the campaign.

Politics is not the same as business of course, and the dividing line between personal criticism and political division is blurred. But in the world of work, there’s also a danger that trying to manage poor performance can – deliberately or accidentally – move into the personal – which may lead to organisations facing discrimination or unfair dismissal claims.

So how should a small business manager deal with a similar situation?

Firstly – don’t avoid the situation. I often quote an Employment Judge who in a tribunal hearing, pointed out to the ex-employee that “it is the Employer’s responsibility and duty to make an employee aware if their performance is below the standards required”. Brushing things under the carpet makes it much harder to deal with things later.

Second – focus on the issues, not the individual. What exactly is it that is not being done correctly? Move from the personal “you’re hopeless at customer service” to the task “the wording of your email to this customer is unclear/antagonistic”

Thirdly – make it clear what improvements are expected, and by when, and outline what support you can give the person to achieve the required level of performance.

Fourth – don’t micromanage. Picking up an individual for every tiny error is not going to lead to an improvement, you’ll just end up shattering their confidence completely and ensure that they fail.

Of course, there are times when an individual employee is not up to the job and you may need to dismiss them as a result. But unlike politics, you should do this objectively and not on the basis of personal criticism and destroying their health.

Need to know more about this? You can find out more details here.

What would you do if you found you employed a porn star?

The heady combination of sex and employment law much beloved by the press came to the forefront in a recent case involving an NHS worker who claimed unfair dismissal after her bosses found out she appeared in pornographic movies. Although the judgment in the case is still awaited*, it does raise a lot of questions about how far an employer can go in regulating the behaviour outside work of employees.

The simple facts of the case are fairly straightforward. Ms Molloy was employed as a medical secretary to an NHS consultant. Although she would have access to a lot of patient information, she would rarely deal with or be seen by patients – it was purely an administrative role. There appears from the press reports to have been no issues with her work.

However, outside of work, she appeared in a number of pornographic films and apparently also advertised what are referred to variously as “kinky adult services”.

No-one in the Trust was apparently aware of this until it was brought to their attention by another employee (whom a number of press reports refer to as a “whistleblower” although it’s doubtful whether reporting on a colleague’s legal out of work activities would necessarily be covered by the whistleblowing protections).

Following this information, Ms Molloy was allegedly given a “resign or be dismissed” ultimatum.

So – were Ms Molloy’s activities outside work any business of her employer?

The Trust appears to have relied on two aspects – that she had breached their policy on second jobs, and that her behaviour had brought them into disrepute.  I wrote about how to deal with employees who have more than one job here, and it’s difficult to see how having a non-health service job in her own time would cause a problem (especially since in the NHS many senior professionals have second jobs) . At worst, it might be a warning for failing to notify them.

So did her behaviour bring the NHS into disrepute? She wasn’t patient facing, and it appears that her activities had been going on for some time without attracting any notice (which given that online porn is easily available is quite surprising).  Was the trust’s reputation damaged by being seen to employ her? Would the press have made anything more of the issue than they have done anyway, had they somehow got hold of the information sooner?  Or would public confidence be damaged? It’s interesting that in an admittedly unscientific newspaper poll, an overwhelming majority felt she should not have been dismissed (a suspiciously convenient 69%!)

Of course, many people find pornography distasteful, immoral or demeaning to women. But is a personal moral opinion grounds to sack someone doing something that isn’t illegal? In employment terms, you’d really need to show that continuing to employ the person was causing significant damage to your business to justify dismissal – was it within the range of reasonable responses to the issue? It might well be a case of “Some other substantial reason” if this were the case.

*Update Sept 2016 – Ms Molloy’s claim was successful, primarily on the grounds that the Trust had failed to follow any real procedure, although the judge felt that the disrepute issue would have potentially been a fair reason had they dealt with matters correctly.

The World’s most expensive training course?

Like many football fans, I watched events at Old Trafford yesterday – where the match was abandoned before kick-off after a “suspect device” was found in the stadium – with initial concern, followed by relief that the incident appeared to be a false alarm, and finally a degree of amusement when it was revealed that the mysterious package was in fact a dummy bomb left over from an exercise to train sniffer dogs in the ground several days previously. Several comments on social media at the end of the day expressed the view that they hoped the individual(s) responsible to be fired this morning.

But if your staff were responsible for such an incident, would you be considering dismissing them today? After all, we all like someone to blame, and there’s no doubt that the incident caused massive inconvenience to a lot of people. Indeed, local politicians seem to have jumped on the scapegoating bandwagon

But consider it this way. That error gave the emergency services the best way of testing their disaster plans in the event of a suspected bomb. They successfully evacuated 75000 people from the ground, put in place public transport plans to get them away from the area, and ensured that everything was done without panic or problem. But I’m also sure that they will be reviewing today what worked less well and making changes to resolve problems.

No matter how well planned your training, people will always behave differently when they think the event is actually happening (compare what happens during a planned fire drill and how people behave when they think there is real fire). So rather than blame, we should consider yesterday as a very high profile learning experience. The individuals concerned with leaving the dummy bomb behind will never again forget to carry out basic checks, while the emergency services will probably never have a better opportunity to safely test their procedures in a real life situation.

So blame, or thanks? Which would your company go for?