On Beecroft: it is already quite easy to sack people


2:37 pm - May 24th 2012

by John B    


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On the incompetent Mr Beecroft‘s attempt to take labour relations back to the 1830s – note that in private sector workplaces in England & Wales without union recognition agreements, all of the following are the case:

There are straightforward processes available to sack lazy/incompetent workers which, if you follow them correctly, take less than six months from when you first notice the problem with their work and don’t lead to complicated legal action.

I’ve personally dismissed people in this way. Anyone denying that is either lying or has no idea what they are talking about.

There are straightforward process available to sack people for gross misconduct which, if you follow them correctly, can be actioned on the same day, totally resolved within a week, and don’t lead to complicated legal action. I’ve personally dismissed someone in this way. Anyone denying that is either lying or has no idea what they are talking about.

If someone you have sacked having followed the correct procedures then takes you to tribunal, you can call a pre-hearing review where the judge determines there is little or no case to answer. Should they wish to pursue the case, they’ll have to pay a hefty deposit and will ultimately be liable to pay your costs when you lose. Anyone denying that is either lying or has no idea what they are talking about.

Where cases make it as far as losing at a tribunal, it is inevitably for one of two reasons:
1) the person was fired without reasonable cause (whether for race/whistleblowing/management petulance/whatever)
2) the person was fired with reasonable cause, but the company failed to follow the simple procedures that you need to follow in order to fire somebody with reasonable cause.

Anyone denying that is either lying or has no idea what they are talking about.

In unionised and/or public sector workplaces, the procedures may be more complicated; I’ve got no idea how they work, having never worked as a manager there. Ditto Scotland, although I think most employment law is reserved to Westminster.

But none of that matters for Beecroft’s purposes, because the procedures followed in these situations are not the ones laid down in statute law, and hence wouldn’t be changed by anything that Beecroft dictates.

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About the author
John Band is a journalist, editor and market analyst, depending on who's asking and how much they're paying. He's also been a content director at a publishing company and a strategy consultant. He is a regular contributor to Liberal Conspiracy and also blogs at Banditry.
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Reader comments


1. Shrugged...

Take less than six months to get rid of an incompetent person? This is reasonable why? And why should unionised or the Public Sector be different?

Otherwise agree completely.

I added this disclaimer to the post on my blog:

[*] it’s been questioned whether ‘six months’ is ‘simple’. I’d say yes: if someone on probation turns out to be crap, you can fire them immediately and easily – so the ‘six months’ bit only occurs for someone who was decent and suddenly becomes crap, or who’s been left to get on with being crap for years with nobody doing anything about it. In the first case, it’s human decency to give them the chance to turn around (hence why performance improvement plans etc exist); in the second, the company can hardly blame the law for doing what it failed to do in the first place.

3. Chaise Guevara

Assuming this is a typo: “Should they wish to pursue the case, they’ll have to pay a hefty deposit and will ultimately be liable to pay your costs when *you* lose.” When *they* lose, I’m guessing!

Pedantry aside, thanks for an informative and interesting article. To answer Shrugged’s first question @1, the article says it’s from when you first notice a problem. So (law aside), a decent person might first try to confirm that there is a problem (you haven’t got the wrong end of the stick), try to discover what’s causing the problem (is the employee often off sick because they’re lazy, or because another employee is bullying them?), and see if the problem can be successfully resolved without going to the extent of sacking them (maybe someone’s productivity is low because they’ve never been shown how to do things the proper way).

4. Planeshift

“And why should unionised or the Public Sector be different?”

It isn’t different in law (AFAIK)

It is different because unions have negotiated different procedures that give more protection to people.

I’d also point out that loads of employment law was introduced by the Tories as a way to undermine the unions and a way to formalise the way businesses let people go.

I’m starting a new job soon, during my three month (but extendible) probation period I can be sacked with a weeks notice and in the first year it is with a month’s notice.

The first year is when it is most important on whether you want to employ someone or not, an employers have lots and lots of freedom in that first year. If you’ve employed someone for over a year and have only just noticed their crap at their job, then your firm’s problems run a little bit deeper than ever so slightly awkward employment law.

Quite right, getting rid of a useless employee is easy enough if you are fair about it. In my company our procedure is (simply put) as follows.

Poor quality of work -> Verbal warning with targets for improvement -> Continued poor quality -> Written warning with set targets for improvement -> Continued poor performance -> Sacked.

As long as you set fair targets and time frames and do everything reasonable to help the employee then there’s no problem. Obviously there is a different procedure for gross misconduct. Get yourselves a solid procedure, stick to it and problem employees can be removed with minimal hassle.

Beecroft’s suggestion has got British management culture written all over it, given that it’s a culture that mistakes pure authority as leadership and management ability every single time.

This is mainly due to the fast route to management roles up and down the nation being to train as a bar manager, where you can easily get away with flanking yourself with your doormen and intimidating your often young and inexperienced barstaff into signing and doing whatever the fuck you like. Once these managers transition to a management role where they don’t have thuggish heavies on hand, and have staff who are more likely to want to keep their job and be more clued up on their rights as workers, they’re often completely out of their depth. Hence the consistent wails for the ability to inflict economic violence at the drop of a hat.

8. Just Visiting

John B

You own expeience, as in any matter, is only anecdotal – not proof.

> If someone you have sacked having followed the correct procedures then takes you to tribunal, you can call a pre-hearing review where the judge determines there is little or no case to answer.

Not true – you do realise that at the PHR by definition the evidence is NOT looked.

The employee does not have to prove anything at this stage -the evidence is not looked at.

I’ve been at a PHR.

> Should they wish to pursue the case, they’ll have to pay a hefty deposit

I notice you don’t quote statistics as to what percentage of PHR’s that a deposit is required.
Have you any statistics?

> and will ultimately be liable to pay your costs when you lose.

Have you checked the statistics? Do you know how extremely rare it is for the losing claimant to be made to pay the employer’s legal costs?

> Anyone denying that is either lying or has no idea what they are talking about.

Whereas you are being less evil – you are just mis-leading LC.
You’re right that the law allows PHRs and etc – but you’re misleading in how you overstate their effect.

It’s as misleading as quoting some archaic 18th law that is on the statute books, and saying ‘it’s illegal’ – when in reality the law has not been enforced for decades.

The real facts are:
i) it costs claimants nothing to make a claim to a Tribunal
ii) they have little to risk – as the chance of costs being awarded against them are small – and even if awarded the court will take into account the financial circumstances of the person – if they are out of work ie not earning then of course will be lenient, quite rightly.

9. Trooper Thompson

I’m sure the issue is mainly a distraction, but if John B is right that it is no big deal to get rid of someone, then a change in the rules wouldn’t make much difference, will it? But, as I say, this is probably only a distraction.

but if John B is right that it is no big deal to get rid of someone

You forgot the ‘for a good reason’ from the end of that bit. The changes are to make it so you can fire anyone for whatever trumped up reason you can pull out yer arse, like say Liverpool beating your team so you fire the loyal industrious employee of 15 years cos he’s a Liverpool fan.

The whole reason for the prolonged recession is because of a lack of demand partly due to the governments cuts sucking it out of the economy. How is worsening the general public’s job security a way of increasing demand? If people don’t know whether they’ll be sacked the week after next, they’ll just cut back spend and less worsening the situation…

12. So Much For Subtlety

There are straightforward processes available to sack lazy/incompetent workers which, if you follow them correctly, take less than six months from when you first notice the problem with their work and don’t lead to complicated legal action.

I take it you are either an academic or you work for a large multinational? Nothing that takes six months is simple for a small or medium sized business. It is also very disruptive for the process to drag out for so long. Nor are the procedures at all straightforward. They actually are quite complicated. You are simply assuming everyone has legal training and fluent English and can afford a large HR department.

There are straightforward process available to sack people for gross misconduct

Define gross misconduct.

Should they wish to pursue the case, they’ll have to pay a hefty deposit and will ultimately be liable to pay your costs when you lose. Anyone denying that is either lying or has no idea what they are talking about.

As someone else has pointed out, whatever is on paper, people who appeal tend to be poor and virtually never have to pay. This is a losing proposition for almost all employers and again can be a crippling burden to small and medium sized businesses.

Where cases make it as far as losing at a tribunal, it is inevitably for one of two reasons:
1) the person was fired without reasonable cause (whether for race/whistleblowing/management petulance/whatever)
2) the person was fired with reasonable cause, but the company failed to follow the simple procedures that you need to follow in order to fire somebody with reasonable cause.

Inevitably? That is an interesting word. How about this case (admittedly an American one and so not really relevant, but fun anyway):

On July 27, 2007, Delgado failed a random drug test given to such employees and tested positive for cocaine, according to The Denver Post.

By agreeing to abstain from alcohol and illegal drugs for three years and seeking treatment, he was able to keep his job.

On Sept. 18, 2008, while operating a road patcher, a follow-up alcohol test showed he had a 0.06% blood-alcohol content.

But, the hearing officer ruled Delgado should get to keep his job because the printer attached to the Breathalyzer malfunctioned and no printout of the test was available.

The state requires a printout of results. Since the city didn’t have one, it failed to prove a violation, according to the hearing officer.

Delgado didn’t dispute the Breathalyzer test results. Despite that, the ruling said he should be reinstated and have any pay or benefits that had been withheld from him restored.

The City of Denver plans to appeal the ruling.

As for the malfunctioning printer: It’s been fixed.

Now sure, if the law said he needed a print out, he needed a print out. But here’s a case which was not a single one of the conditions you claim. The result was not even in dispute. Are you saying it could never happen here? What about the Social worker who was struck off for failing to disclose a drink driving conviction and loss of licence for two years while continuing to claim a driving allowance from her employer? Definitely a British case.

SMFS:
Gross misconduct is defined in contracts of employment and in case law.

I’ve already noted that if you hire someone and they’re crap, you can sack them immediately under probation rules. I can’t think of a scenario where a struggling small business would have a long-serving employee on the books who was useless: in a large corporation/government department, that can sometimes happen because nobody can be bothered to deal with the poor performer. But if paying someone’s salary for six months is a big deal to the business’s viability, then *it won’t be in that position in the first place*. Maybe there are some convoluted scenarios I’m missing?

The City of Denver case is fair enough. If the city is too incompetent to provide evidence in the form required by its own procedures, which are in place specifically to stop managers saying “He was drunk at work, because I say he was” when they want to remove people they dislike, then obviously it’s failed to make its case. Assuming Delgado is still boozing it up, then he’ll doubtless fail another test before too long, with the authorities not fucking it up this time.

(in the UK, the city would have been completely within its rights to fire him for gross misconduct when he tested positive for cocaine the first time, and I would’ve done so in that position. My knowledge of Denver employment law is, oddly enough, limited.)

Presumably this is the social worker case you’re thinking of? I’m curious as to why you think this proves your point.

The worker in question was suspended for gross misconduct as soon as the conviction came to light, but resigned before the council had completed its investigation (which found that she had indeed committed gross misconduct and would have been dismissed had she not resigned).

It’s not clear from the case how long the council’s investigation took. Under employment law, you’d need to get the CRB check, confirm it wasn’t an administrative error, dig up the allowance payment records, put the accusations of dishonesty to the employee, listen to any justification they may have, weigh them up (which, in this case would be open-and-shut), and dismiss. This should take under a week.

I admit it’s likely that the council has convoluted bureaucratic procedures (more because it’s a council and they have convoluted bureaucratic procedures for everything than because of anything specific to employment rules) which meant that it took rather longer. But given that I’m talking about employment law, not how employment works in practice in parts of the public sector, that isn’t really the point.

15. Robin Levett

@john b passim:

I entirely agree with you that Beecroft’s report isn’t worth the fag-packet on the back of which it was written.

It pains me to side to any extent with SMFS, but I do not, however, agree that you have accurately set out the legal and practical position in the post above.

For example; the number of occasions on which an employee will be called upon to pay the employer’s costs if they lose an unfair dismissal claim is small; costs do not as a matter of course follow the event, since the rules require frivolous, vexatious etc or otherwise unreasonable conduct. Again, I’d be interested to see your authority for the proposition that the employee will be, as a matter of course, required to pay a hefty deposit.

16. Dan Factor

Most organisations have something called a Capability Procedure where when the standard of an employee’s work falls bellow accepted levels they can be taken to a three stage procedure where they are given a chance to improve their work by disussing problems they may have with their line manager.
If by stage 3 their work is still poor then they get the sack.

17. Planeshift

“You own expeience, as in any matter, is only anecdotal – not proof.”

Well as the law is the same for everybody it’s a pretty good start hearing from somebody who has actually fired someone. None of the right wingers on here have managed to substantiate the claims that it is too difficult to fire people with any evidence.

But if you want evidence, lets consider this report from the CAB (www.citizensadvice.org.uk/employmenttribunals-2.pdf ·) that examines what happened when labour made it more difficult to take employers to tribunal in 2001.

“the most notable consequence of the changes has been an explosive increase
in the making of costs threats to applicants – and even to CABx representing applicants – by employers’ lawyers. For, with the increase in the maximum amount of costs from £500 to £10,000, the potential impact of such a threat, especially when delivered in a stronglyand legalistically-worded letter shortly before the tribunal hearing, has increased enormously.”

So employers already have a method of detering claims – genuine claims – through threatening the imposition of large costs.

Of course, as a right winger with little knowledge of employment law, you were probably unaware of the fact labour changed the law in 2001 to make it more costly to bring claims against an employer.

“The real facts are:
i) it costs claimants nothing to make a claim to a Tribunal”

Not true – you have to pay court admin fees for filling a claim. Some claimants might get this done for them on a no win no fee basis, but this isn’t the same as saying there is no cost, and quite clearly has a different remedy to abolishing the rights of people.

18. Mr Grunt

The reality is that the Tories want a system that allows it to be totally legal To Use And Abuse, end of.

Dear All

I’m more of a libertarian than a right-winger, but anyway…

1 I have founded a number of small businesses without any external capital. I’m not rich, just optimistic. Imagine you’re me, about to recruit person number two. How could I possibly justify to Mrs Shrugged that I’ve just recruited a 32 year old newly-wed? We couldn’t possibly afford to pay her maternity, keep her job open and hire a temp. How could we?

2 I have let people go from blue-chips and small businesses (and they have let me go). As you all rightly say, it’s easy in a blue-chip. You have a process, Capability Improvement Plans, etc and critically, we’re not shareholders. In a blue-chip one is more motivated by productivity and inter-personal relationships than cash flow. A small business is almost exclusively about cash-flow but one disfunctional cog can stop the whole engine.

3 This argument really shouldn’t be employers vs employees. Many many people have cleaners (seriously, they do!). How long would you tolerate a cleaner who doesn’t clean?

Shrugged

20. Planeshift

“We couldn’t possibly afford to pay her maternity, keep her job open and hire a temp. How could we?”

Small businesses can apply for wages to be covered during the period of maternity. Cim dealt with this a while back – see http://refusingthedefault.blogspot.co.uk/2011/03/bad-for-families-bad-for-small.html

” Businesses making less than £45,000 in class 1 National Insurance contributions annually (roughly: businesses with less than £400,000 in staff salary costs, which will be just about every business with ten or fewer employees) can reclaim from the government 104.5% of the costs of paying statutory pay to the employees.”

21. Chaise Guevara

@ 19 Shrugged

“Imagine you’re me, about to recruit person number two. How could I possibly justify to Mrs Shrugged that I’ve just recruited a 32 year old newly-wed? We couldn’t possibly afford to pay her maternity, keep her job open and hire a temp. How could we?”

Then don’t hire her. AFAIK small businesses aren’t required to demonstrate equal-op hiring policy (because it’s gonna be kinda hard to get a three-person workforce that is 50% female, and so on).

“This argument really shouldn’t be employers vs employees. Many many people have cleaners (seriously, they do!). How long would you tolerate a cleaner who doesn’t clean?”

No time at all, but this is the equivalent of gross misconduct mentioned above, i.e. something dealt with quickly.

I assume your other point is that often employers and employees are the same person, but I still don’t see how this issue can avoid being employers (plus government) vs employees (plus unions). The government want to bulldoze worker’s rights to make things easier for employers to abuse them – that’s not how it’s presenting the issue but that’s what’s gonna happen. There may be some non-employers in favour and some employers against, but in terms of whose interests are being served, the line is pretty clear.

22. Trooper Thompson

Surely the right to get out of an employment contract should be the same for both parties. An employer can’t force a worker to continue in a job when they want to leave, so why should a worker be able to force an employer to continue employing him?

19/Shrugged: How could I possibly justify to Mrs Shrugged that I’ve just recruited a 32 year old newly-wed? We couldn’t possibly afford to pay her maternity, keep her job open and hire a temp. How could we?

1) As a small business making less than £45,000 National Insurance payments annually, you are entitled to recover 100% of statutory maternity pay from the government (plus a small additional bit to cover your admin costs, so you actually get more than 100% funded to provide it). Furthermore, this can be recovered through PAYE, by reducing the size of your NI payments – so you have the money immediately, rather than sending it to the government in NI, and having them send it back again. Additionally, you’re not paying her salary during this time, so you can spend that on hiring a temp. And you get your skilled staff member back after 6-12 months.
2) Your assumption that every 32 year-old female newly-wed person will be about to go on maternity leave is of course completely wrong. (How would you even know they were newly-wed, anyway?) But even if it were true, aren’t you doing your business a disservice by hiring someone other than the most competent candidate? (If you’re thinking long-term, having them take a six month break for maternity leave, funded for you by the government, is a small price to pay for getting the best)
Perhaps your problem is in fact that you would make unjustifiable assumptions about potential employees and so this would lead you to pick someone based on your assumptions rather than on who the best candidate really was?

24. Chaise Guevara

@ 22 Trooper

“Surely the right to get out of an employment contract should be the same for both parties. An employer can’t force a worker to continue in a job when they want to leave, so why should a worker be able to force an employer to continue employing him?”

Can a worker actually force an employer to keep employing him? What happens if the employer flat-out refuses; do the policer break into the building and forcibly install the worker at his post?

25. Planeshift

Trooper – there is a word that is found in economics textbooks that comes to mind. Externalities.

Perhaps you should read the section on it, and consider how it might apply to the situation of an employer dismissing somebody in an advanced western economy with public services and welfare, particularly if the manner of dismissal is such that most would consider it bullying.

Surely the right to get out of an employment contract should be the same for both parties.

No.

27. Trooper Thompson

@ 26 Larry,

care to elaborate? Why not? What’s wrong with equal rights?

@ 25 Planeshift,

anyone can gesture in the vague direction of ‘externalities’ to back up their particular opinion.

28. Chaise Guevara

@ 27 Trooper Thompson

“Why not? What’s wrong with equal rights?”

Firstly, this isn’t an equal rights thing as the employer would be entitled to the same rights were he an employee. But I get that it looks unfair on paper.

The issue is that there’s a difference between equal treatment under the law and equal treatment in the real world. In most cases, losing your job is much more painful than having one of many workers quit your company. Working for an unpleasant boss is much worse than having one unpleasant employee. Contracts are written by the company and thus weighted in its favour. Thus companies can push people around.

It’s different for small enterprises, and I don’t know the extent of the legislation (if any) to protect them. Maybe a company employing no more that two people (plus the employer) should be able to fire people more easily. But I won’t cry any tears for major corporations who lack the ability to bully employees as much as they could in a more laissez-faire world.

@22 The equivalent to an employee quitting is an employer scrapping a position entirely. Which they DO have the right to do.

30. Robin Levett

@Trooper Thompson #22:

Surely the right to get out of an employment contract should be the same for both parties. An employer can’t force a worker to continue in a job when they want to leave, so why should a worker be able to force an employer to continue employing him?

That isn’t the issue – the issue is whether the employer should pay compensation for sacking the employee. Reinstatement is not that common, and ordered only where both the employee wants it and where, for example, workplace relationships have not ben so fractured as to make it impractical.

As to why; inequality of bargaining power. You pray in aid of your argument equal rights; without equality of bargaining power, there would be no equal rights. The law on unfair dismissal evens up the scales.

31. Robin Levett

@Planeshift #17:

Not true – you have to pay court admin fees for filling a claim. Some claimants might get this done for them on a no win no fee basis, but this isn’t the same as saying there is no cost, and quite clearly has a different remedy to abolishing the rights of people.

There is no fee payable on filing an ET1 commencing an unfair dismissal claim; indeed there are no fees payable within an unfair dismissal claim.

If you are making a claim for wrongful dismissal – ie breach of contract – then if this is brought in a County Court a Court fee is payable – but this is not relevant.

32. Robin Levett

@John B – OP:

If someone you have sacked having followed the correct procedures then takes you to tribunal, you can call a pre-hearing review where the judge determines there is little or no case to answer. Should they wish to pursue the case, they’ll have to pay a hefty deposit and will ultimately be liable to pay your costs when you lose. Anyone denying that is either lying or has no idea what they are talking about.

You can call a pre-hearing review and apply to have the claim struck out. If the Employment Judge is convinced there is no reasonable prospect of success then he may strike ut; if there is little, he may order the payment of a deposit not exceeding £500, taking account of the ability of the depositor to pay.

Pre-hearing reviews are discouraged; particularly where resolution of the issues to be determined will involve hearing the merits of the case.

If the depositor continues to litigate and fails, then s/he is rather more likely to be required to pay costs, since there is a decent argument that in pursuing the claim despite having been told there is little reasonable prospect of success s/he is acting unreasonably. To suggest that this is automatic, however, is simply wrong.

If the EJ does not order a deposit to be paid, however, the likelihood of costs being awarded at the end of the day reverts to the “vanishingly small” category. The ET procedure was envisaged (then as the IT procedure) as a no-costs and swift procedure conducted generally by non-lawyers; the no-costs provision was intended (i) to discourage the use of lawyers and (ii) to avoid placing the obstacle of a possible costs order in the way of a meritorious but indigent claimant.

33. Planeshift

@31 – I guess there lies my confusion – but what is the difference between a claim for unfair dismissal and wrongful dismissal then?

@33

Wrongful dismissal entails a breach of contract. Wrongful dismissal claims can be brought via an employment tribunal but the maximum compensatory award is capped at a relatively low figure – from memory not much over £20k – so its that often that claimants go that route.

IIRC most wrongful dismissal claims that go to court, rather than a tribunal, tend be brought by people employed on high value fixed term contracts, where the plaintiff will typically be looking to paid the full value of the remaining term on their contract at the point at which they were terminated.

Unfair dismissal is where a dismissal in deemed unfair at law but the unfairness is not sufficient to give rise to a clear of breach of contract.

35. Robin Levett

@Planeshift #33:

Broadly:

Wrongful dismissal – dismissal in breach of employment contract (eg dismissal half way through fixed term contract);

Unfair Dismissal – dismissal (i) without establishing to the necessary standard the existence of one or more of the 5 fair reasons for dismissal (eg capability), or (ii) for one of the automatic unfairness reasons (eg pregnancy), or (iii) without following procedure.

As a result of changes in the last 10 years:

An unfair dismissal claim is always brought in the ET; a wrongful dismissal claim may be brought either in the ET (but with a cap on damages of £25k), or in the County or High Court.

Robin: perhaps I ran sentences into each other a bit, but I don’t think our accounts are contradictory. We agree that if there’s no prospect of success, the judge in a PHR will throw it out; if there’s little, he’ll ask for a deposit. I agree that under any other circumstances, it’s vanishingly unlikely (or perhaps literally impossible, I forget which, it’s 2AM here and I’ve just finished work so brane not on top form) that the employee will have costs awarded against them.

As you say, this is fair enough: if employees routinely had costs awarded against them, then unscrupulous employers would hire Carter Ruck to terrify them out of court with the size of their bill.

37. Just Visiting

John b

Not sure you are listening.

> Robin: perhaps I ran sentences into each other a bit, but I don’t think our accounts are contradictory. We agree that if there’s no prospect of success, the judge in a PHR will throw it out; if there’s little, he’ll ask for a deposit.

In a PHR, as I said above – the judge will by definition NOT look at any evidence. Just at the claim + counterclaim.

So the ONLY cases he will throw out are where the claimant has been stupid and claims something not applicable under the law. (“I want £1M for my hurt feelings”)

But so long as the Claim includes the appropriate legal phrases (constructuve dismissal..sexual discriminiation…age discrimination… “there are emails showing …”, ” I have witness statements that support my claim”…) – then the Judge has to let it go to court.
He does NOT look into the evidence at all.

I know it;s crazy, but that’s the law!

What happens at PHR is NOT what you claim it is !
(unless I’ve only dreamt being at a PHR where this point was made very clear !)

38. Just Visiting

17. Planeshift

> Not true – you have to pay court admin fees for filling a claim.

You’re 100% wrong.

Or the governments website is wrong, they say:

There is no charge for making a claim to an Employment Tribunal. So unless you are paying a representative (for example, a solicitor) there is normally no cost in making a claim.

http://www.direct.gov.uk/en/Employment/ResolvingWorkplaceDisputes/Employmenttribunals/DG_10028122

If I’m right, and you’ve twice on here stuck to a false claim that you didn’t even check up on a 5 minute Google search…. well that’s bl**dy annoying PlaneShift, it really is.

39. Just Visiting

23. cim

> 1) As a small business making less than £45,000 National Insurance payments annually, you are entitled to recover 100% of statutory maternity pay from the government

True.

But do you know how small Statutory maternity pay is ?
Compared to average salaries ?

And anyway, how does it help, when your staff member is away for somewhere like 6 mnths plus…. and you have to fill the gap, but can’t hire someone new, because the mother may decide to come back to work.

Sure you’re not out of pocket paying them a salary, but the hassle factor is significant if they had anything other than a menial role n the company that is easily covered.

But do you know how small Statutory maternity pay is ?
Compared to average salaries ?

Yes. But that’s not a direct problem for the business – they reclaim a small amount, and pay their worker on leave a small amount. If the pay was higher – and it should be – they would reclaim a larger amount, and pay their worker on leave a larger amount. Their net position would be much the same. I’m really not sure where you’re going with this.

And anyway, how does it help, when your staff member is away for somewhere like 6 mnths plus…. and you have to fill the gap, but can’t hire someone new, because the mother may decide to come back to work.

There are various temp agencies that specialise in this sort of thing for a wide range of jobs from menial to highly skilled. If your employee was doing something so rare and specialised that there aren’t temp agencies for it, then your long-term costs are probably best served by doing everything you can to retain skilled staff, including letting them take leave when they need to.

(My employer is in a sector where there are not temp agencies available for the jobs done by many of its key staff, and also has maternity leave and pay arrangements considerably more generous than the statutory minimum. These are probably not unrelated)

JV, if you’re going to get arsey about people not listening to you, perhaps you could stop making points other people have already made in a far more reasonable and coherent fashion. I completely accept everything Robin has to say here, which doesn’t stop me from thinking you’re a bit of a tit, and he’s already corrected Planeshift’s mistake about costs.

And as CIM notes, your point about SMP is bizarre. Small companies have to pay SMP, but can claim it back. If they like, they can pay more than SMP, in which case they can’t claim it back. But they don’t have to, and will only do so if it’s in their business interests. And finding a temp is hardly a challenge in the current UK business environment…

42. Just Visiting

Robin 32

> If (after PHR) the depositor continues to litigate and fails, then s/he is rather more likely to be required to pay costs, since there is a decent argument that in pursuing the claim despite having been told there is little reasonable prospect of success s/he is acting unreasonably.

Actually, I’ve heard the exact opposite argument being made to the court regards costs- the claim said that for the very reason that the court agreed at PHR that the case should continue, then costs shouldn’t be awarded.

I think you’re mistaken (correct me if I’m wrong) – but the PHR does not, as far as I am aware ever make judgements like ‘ little reasonable prospect of success’: because by definition the PHR is not allowed to look at any evidence – simply at the claim and counterclaim statements.

43. Just Visiting

John b

> I completely accept everything Robin has to say here,

> We agree that if there’s no prospect of success, the judge in a PHR will throw it out

But that is a vague statement, and you’ve not written anything to clarify it.

Specifically – do you agree or not that the evidence of a case is NOT looked at within a PHR?

If the evidence is not looked at, then a PHR has very little to say on ‘prospect of success’ – so your sentence above is quite untrue.

The PHT only rules on whether the ‘law could be applied’ given what is in the Claim and response.

Googling I find the PHR is pretty limited in scope:
Questions concerning a person’s eligibility to bring proceedings before an Employment Tribunal can be decided at a pre-hearing review. For example, a question as to whether a claimant had completed the period of continuous employment normally needed for claiming unfair dismissal or had brought his claim within the relevant limitation period (see Time-limits/for various applications to Employment Tribunals ) could typically be decided at a pre-hearing review.

44. Robin Levett

@Just Visiting #42:

If (after PHR) the depositor continues to litigate and fails, then s/he is rather more likely to be required to pay costs, since there is a decent argument that in pursuing the claim despite having been told there is little reasonable prospect of success s/he is acting unreasonably.

Actually, I’ve heard the exact opposite argument being made to the court regards costs- the claim said that for the very reason that the court agreed at PHR that the case should continue, then costs shouldn’t be awarded.

Where the EJ on PHR had required a deposit to be paid? That was the context of my comment to which you were replying.

I agree that if an EJ at a PHR considers the issue and decides to let the claim continue without requiring a deposit, it would be very difficult to argue that the claimant was being unreasonable – but that wasn’t the context.

I think you’re mistaken (correct me if I’m wrong) – but the PHR does not, as far as I am aware ever make judgements like ‘ little reasonable prospect of success’: because by definition the PHR is not allowed to look at any evidence – simply at the claim and counterclaim statements.

You’re wrong. You may like to look at The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 Rules 18-20:

http://www.legislation.gov.uk/uksi/2004/1861/schedule/1/made

Particularly 18(2)(a) to (d) (and even more particularly (d)):

“(2) At a pre-hearing review the chairman may carry out a preliminary consideration of the proceedings and he may —

(a)determine any interim or preliminary matter relating to the proceedings;

(b)issue any order in accordance with rule 10 or do anything else which may be done at a case management discussion;

(c)order that a deposit be paid in accordance with rule 20 without hearing evidence;

(d)consider any oral or written representations or evidence;

…”

45. Just Visiting

Robin

> You’re wrong. You may like to look at The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 Schedule 1 Rules 18-20:

Thanks for that.

What I witnessed at a PHR in November contradicted the above – the judge quoted some case history to specifically insist that he was not allowed to consider the evidence of the case.

Either that judge was wrong – or there is indeed some case history since 2004, that PHR’s use to explain why they do not review evidence.

46. Robin Levett

@JV #45:

….or you were at a case-management hearing?

47. Robin Levett

#JV #45:

Expanding on my #46:

I’m going to be more positive – you *were* at a case management discussion; which is held in private. By rule 17(2):

“Any determination of a person’s civil rights or obligations shall not be dealt with in a case management discussion. The matters listed in rule 10(2) are examples of matters which may be dealt with at case management discussions. Orders and judgments listed in rule 18(7) may not be made at a case management discussion.”

Rule 18(7) lists orders that can be made at a pre-hearing review:

a judgment or order: —

(a) as to the entitlement of any party to bring or contest particular proceedings;
(b) striking out or amending all or part of any claim or response on the grounds that it is scandalous, or vexatious or has no reasonable prospect of success;
(c) striking out any claim or response (or part of one) on the grounds that the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent (as the case may be) has been scandalous, unreasonable or vexatious;
(d) striking out a claim which has not been actively pursued;
(e) striking out a claim or response (or part of one) for non-compliance with an order or practice direction;
(f) striking out a claim where the chairman or tribunal considers that it is no longer possible to have a fair Hearing in those proceedings;
(g) making a restricted reporting order (subject to rule 50).

Note in particular (b).

Rule 20 gives the EJ sitting in a PHR jurisdiction to order a deposit; the ground being “…if a chairman considers that the contentions put forward by any party in relation to a matter required to be determined by a tribunal have little reasonable prospect of success…”


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