Not able to do the job?

Recently a client of mine came to me saying they had just received a solicitor’s letter claiming that someone they had hired and dismissed within two months was dismissed because he suffered from a disability. They wanted to reach a settlement. The truth was that he was dismissed because he had claimed at interview that he had a certain set of skills, and it had become abundantly clear that either he had lied at the interview or he had not appreciated what they were asking for (it was a technical job).
The problem was they hadn’t told him that. They just told him he wasn’t up to the job and told him to clear his desk. Unfortunately, there was no record of this conversation, and unknown to the management there had been a bout of office “banter” a couple of days before which the employee felt was having a go at people with his particular disability.
A perfect storm really and I have to say the cost of settling was much less than the cost and disruption that would have resulted if a claim had been made. So that’s what they did. So why when they had a perfectly good reason to let him go, did they not fight the case?
They didn’t know about the office “banter” and they also didn’t know about the individual’s disability (although it could have been argued that they should have realised). The point is from the ex-employee’s point of view he had not been told what he was doing wrong and just a couple of days before he was sacked he had been upset by some comments in the office which he felt referred to him. So, he had put two and two together and come to the conclusion that the dismissal and the comments were related. Actually, if you put yourself in his position it was not an unreasonable conclusion to come to.
The legal situation was also pretty worrying. If someone has less than two years’ service you are allowed to dismiss them for any reason you like provided it is not one of the “protected” reasons. For example making a health and safety complaint, asking for a payslip, having a protected characteristic under the Equalities act (sex, race, marital status, sexuality, religion, disability etc.), in short being dismissed in contravention of, or for asserting a statutory right.
The other legal point is that if someone makes a claim under Equalities legislation, it is for the employer to show that the employee had not been discriminated against. If they cannot then the tribunal is entitled to find in the employee’s favour. In this case our assessment, based on the facts, was that the employer would lose the case if it came to a hearing. Also the cost of settling was less than the cost of defending the case not to mention the disruption that would have been caused to a small company.
The message here is simple, in most cases even if someone joins you and quickly shows themselves unable to do the job you have employed them to do, they should always know what they are doing wrong and be given time to get it right before they are dismissed. You should also keep a record of them being told. It’s actually common sense really, but it can get lost in a busy workplace.
It also would have helped if they had called us before dismissing this employee!
By the way the picture is just a nice scene to help you feel good, it’s also where I wrote this blog so I can feel a little bit smug!

Employment Appeal Tribunal decision opens up a whole new area of claims

In the case of Mr G Abrams vs EAD solicitors, the company owned by Mr Abrams made a claim against EAD that they had discriminated against them as a company by refusing to pass work on to them because Mr Abrams was older than EAD solicitor’s normal retirement age. Whilst the merits of the actual claim have not yet been decided, one issue has been ruled on that could have wide ranging implications for the way we do business in the UK.

The specific issue is whether company A can make a claim against company B for discrimination if the company B acted in a way that was detrimental to Company A because of a characteristic covered by the Equalities Act 2010. The Appeal Tribunal ruled that it could. What this means can best be described by way of an example.

Let’s say an evangelical Christian organisation wants to let a contract to repair the roof of their church. They put out an invitation to a number of local companies who bid for the work. One of the companies that puts in a bid is run by someone who is in a same sex relationship and well known in the community. The church holds strong views on this subject and decides not to award the contract to this company because of these views. The roofing company could then make a claim against the church that they discriminated against them because of their association with someone who is gay and this is unlawful under the Equalities Act.

There are two other issues that add a bit of spice to such a claim:

  1. There is no limit to the amount that could be awarded for such a claim so if the contract was for a few hundred thousand pounds that could be the award.
  2. When a claim like this is made, it is for the respondent to show that there decision was not based on a protected characteristic (in this case the sexuality of the company owner), not for the claimant to show that it was. i.e. the respondent has to prove a negative.

Whilst the possible ramifications of such a decision are essentially unknown, there is one that is almost inevitable. Local and central government procurement processes will become even more mind numbingly bureaucratic as they try to write a tendering process that stops them being subject to a claim under equalities legislation.

Whilst my gut reaction to this is that discriminating against a company because it has an enlightened approach to appointing staff and directors is just wrong. I can’t help feeling that this decision may have consequences that are equally distasteful, and actually create an environment that has the opposite effect to that intended by the legislation. I do not have the wisdom to know the right way out of this problem, but I would be happy to hear from anyone who has any thoughts.