Tony Blackburn case and employment law

Another high profile ending of employment once again highlights some key employment issues.  The ending of Tony Blackburn’s contract with the BBC has once again highlighted misconceptions about employment law.

• The nature of the arrangement between Blackburn and the BBC is unclear.  I suspect he is a contractor not an employee.  If so the BBC’s decision to end his employment may or may not breach that contract but it is the contract that defines whether there is a breach.  Only an employee has the right not to be unfairly dismissed.  Most contracts for services provide that they may be ended by giving a period of notice.  Beyond that the contractor’s remedies are limited.
• From the information I have seen, the issue seems to be a question of honesty.  The BBC appear to dispute some responses he made to the Saville enquiry.  It does not appear to be about the incident that took place many years ago or any suggestion that Blackburn was involved in those incidents.
• I heard the comment this morning, ‘what happened to innocent until proven guilty’.  This implies a perception that the standard of proof in such cases is that of a criminal court.  It is far from that.  The test is whether the employer acts reasonably or unreasonably in treating an incident as a sufficient reason for dismissing an employee.  Employment lawyers frequently hear from prospective claimants dismissed for an offence that they maintain they did not commit.  It is often difficult to explain that that is not the question, rather the question is was the employer’s belief that they did reasonable.
• Dishonesty at work can be gross misconduct. Not surprising as an employer needs to be able to trust their employee.  If an employer has a reasonable belief that their employee has been dishonest, followed a fair procedure in coming to that conclusion and acted reasonably in all the circumstances a dismissal may well be fair.
• The fact that the dishonesty was some time ago may not be a bar to dismissal.  If the employer discovers dishonesty some time after the event a dismissal may well be fair.  The most frequent example of such cases are where an employee has lied on their CV.  Dismissal in such cases may be fair.

It will be interesting to see how this story develops.

A cautionary tale…

Redundancy or loss of employment leads some to conclude that they want greater control of their own destiny and that their own business or self-employment will achieve that goal.

Running your own business or self-employment is not for everyone but in this climate I have seen a number of clients who have chosen that option, some very successfully.  Recently though I saw a client who had used a substantial redundancy payment to buy an existing business.  The business was running at a loss but she believed she could turn it round with better management and fewer staff.  Her first step on taking over was to dismiss a couple of the employees.  She called for our advice having received an employment tribunal claim for discrimination and unfair dismissal.  If the claim succeeds the cost to the business could be substantial and have a significant impact on future profitability.

 The whole scenario could have been avoided or the damage limited if some simple steps had been considered.  The client had taken only advice on the acquisition of the lease, she had not asked her lawyers to address the issues about the business.  Warranties and indemnities in a business acquisition agreement may have provided her with some protection.  She was not aware of the TUPE regulations and did not consider the impact in her case.  She did not follow any redundancy process, deciding to dismiss those employees who worked the least hours and who were the oldest.

These can be simple points for those with experience of buying a business but if you are new to it, take advice.  Investing your redundancy in a business can be a very positive outcome from what has been a difficult time but it should be an informed decision with  steps being taken to minimise some of the risks and protect your investment.

Tribunal changes

The employment tribunal system has always seemed to me to work pretty well.  However the changes to be implemented in the coming months will undoubtedly make differences to the system.  It remains to be seen whether that is for good or ill.  This week we’ve seen two pieces of legislation that start to implement thoese changes.

Draft legislation has now been prepared to increase the qualifying period for unfair dismissal from one year to two.  Employees who start work on or after 6 April 2012 will have to complete two years employment before acquiring an entitlement to written reasons for the dismissal and the right not to be unfairly dismissed.  Could be a reason not to recruit until 6 April as employees who start work before then need only complete one year before they are entitled to that protection.  Some say that this will make employers more willing to take on staff but I am yet to be convinced, surely you know within a year whether an employee is working out?

Additionally, again from 6 April unfair dismissal cases will be dealt with by an employment judge alone rather than a panel of judge and two lay members (one from an employer and one from an employee background).  This has seemed to me to give the tribunal a more practical, commercial feel rather than just a legalistic approach, although I can see it produces significant savings.

More is to come, I’m still not sure if it reduces red tape or just makes it different.