Friday, 27 May 2011


Peninsula Business Services Limited has, for as long as I can remember, been a paradigm for employment law advice to commercial organizations.  It generally operates on a subscription basis providing an element of insurance against adverse results in the employment tribunals.

A few days ago I saw a very short report of a judgment in the Employment Appeal Tribunal on 21 April 2011.  An employer’s appeal against the first instance tribunal’s decision - that it had unfairly dismissed three employees - was itself dismissed.

The EAT upheld the lower tribunal’s finding that there had been non-compliance with procedural steps and that the standard of a reasonable employer had not been met, even in the course of internal appeals.

The hapless employer in this case? Step forward.....Peninsula Business Services Limited!!

Wednesday, 18 May 2011

ACAS reality test

One means by which the Business Secretary expects to reduce the burden on Government-funded Employment Tribunals is to channel more claims through ACAS and expect them to resolve matters informally.

Commentators make the obvious point that ACAS is already overstretched and lacks the capability to do any more.  The only answer to that could be more personnel, more training, more skills...

..which, er, requires funding.

It will also require a serious change of culture because, with limited exceptions, my experience is that ACAS is rarely of any assistance.

In most cases we receive a standard form letter from ACAS at some early stage of proceedings.  It rarely goes further than that but if a caseworker becomes involved, it is generally disappointing.

I can think of one ACAS contact in my region who is notable only for leaving messages to “call back” when I am busy.  I have been through the experience of calling back numerous times only to meet with voicemail. No information exchanged.

We use e-mail a lot.  I have asked for messages to be e-mailed. What do I get? An e-mail asking me to ‘call back’. Yawn.

The worst failing is when a dialogue actually ensues between the parties and is then limited to the blind reporting to each side of the other party’s position - usually in terms of what they are not prepared to do. There is no facilitation, no mediation skill - just posturing by proxy.

It is a frequent feature of negotiations that the parties need to “take positions”.  I am sure I can do that far better by direct contact than through an uninterested agent.

If it is to be any substitute for the courts that have traditionally dispensed justice for hundreds of years, a mediation service needs to add value - not simply put an unattractive package around a war of attrition. 

There is a simple skill to be learnt, but one which I doubt the Government will fund or promote effectively - reality testing.

Most of us have heard stories about the exemplary judge, the one who although he decided against you listened and understood - let you have your say.  Lord Denning was a popular example.

It is important in many situations to allow people to unload their arguments, to have their say.  There is a chance along the way that without any prompting they will realize the weaknesses, even openly acknowledge them.  Certainly they can be helped to do that.

More than anything it is an investment of time, with the recognition of the aims and key skills.  There are people who can do it, but are there enough, are they supported, are they inspired and what will compel disputants to use them?

Saturday, 14 May 2011

Can you put the rope round my waist?

I saw a short report today of a case in which a foreign national had failed in his attempt to delay extradition. The High Court decided that the alleged need to receive treatment for a skin condition was not sufficient reason to delay the extradition process.

Nothing deep or political here - it just reminded me of the lovely joke I heard Duggie Brown tell years ago on The Comedians (whoops - age check alert) about the prisoner who was about to be hanged.  The last request to the executioner was “Can you put the rope round my waist – ‘cause I’ve got a boil on my neck”!

Wednesday, 11 May 2011

Equity will not act in vain

You don’t need any technical legal knowledge to understand the logic of this maxim. Put another way, the policy is that courts will not make orders that cannot be enforced because anything seen to be in the nature of an idle threat destroys credibility.

During the last few days we have seen the debate raging about the apparent breach, on Twitter, of superinjunctions obtained by wealthy celebrities.  What is interesting (apart from trying to track down the tweets) is the jurisdictional aspect.

Apart from the fact that the tweeter is anonymous, some suggest that the disclosures bring no consequences because they were made from the US. Actually it is not simply a case of getting on a plane and going to another country to circumvent the jurisdiction of the UK or other domestic courts.  That is a hole that can be plugged in line with principles applied in other realms of intellectual property and publication.

It still creates difficulty, and perhaps there is no huge amount of sympathy with all the outcry that there has been about superinjunctions.

It may be that there is no more sympathy for US billionaire hedge funder, Louis Bacon, if he is unable to enforce Mr Justice Tugendhat’s order in the High Court on Monday.  Experts say that US-based companies could ignore or refuse to comply.

These are disturbing signs.  I don’t say that because it is my industry and I am worried about my livelihood.  The risk is that others follow suit (forgive the pun) and we have a free for all.

In many respects, the administration of the court system is already in a mess.  We don’t want to add to that the dilemma of our judiciary being undermined.

Monday, 9 May 2011

Money down the drain - part 2

Congratulations to a south-coast employment tribunal office that has really got to grips with the technology to improve efficiencies and save money.

We recently filed an ET3 - response to an unfair dismissal claim - on behalf of an employer client, together with a detailed reply to the claim and copy documents. There were 37 pages in all and we sent them as attachments to e-mails.

We know those arrived safely thanks to the automatically generated receipts that always come from the Tribunal Service but it’s good to have the one-page standard letter acknowledging the response has been received within the prescribed time.

As ever, we asked for correspondence to be sent by e-mail – it’s an option on the standard form.

Not only did we get the one-page standard letter by post - attached to it we have all 37 pages that WE e-mailed to the Tribunal, printed, stapled and put in an envelope bearing £1.49 postage.

I wonder what is the total cost of the postage, consumables and time to perform this exercise and how many times does it happen every day, week in, week out. Needlessly.

The Treasury Solicitor’s office deserves a brief mention too for its consistent practice of sending communications by post (including two-liners in a A4 brown envelope) that have already been sent to a high quality laser-jet fax printer.  I expect they put the letters in the envelope and send them to the post room after they had been faxed “because it is what we have already done”.

The leading contender for some sort of prize at the moment has to be the MoD for this spectacular effort...

A friend - son of an old friend - recently had some problems with his knee whilst serving in the Navy.  It seems the surgery was successful and the problem with the knee is no doubt a fading memory.

What is more difficult to forget is the manner in which his final check-up and discharge was handled.  For no other reason than that he was stationed in North Yorkshire at the time of the problem and surgery, the Navy required - and fortunately for him, paid - him to travel from Crewkerne to Darlington to see the specialist.

Darlington and back - 650 mile round trip.  Here to Yeovil, the nearest hospital and within 5 miles of Yeovilton air base - 9 miles.  If it had to be a naval hospital then Portsmouth and Plymouth are considerably nearer.

The appointment lasted... 4 minutes.

Just what is going on??

Saturday, 7 May 2011

Money down the drain

It seems the failure of HM Revenue & Customs to issue notices of new tax coding in Form P6(T) is widespread. We are not the only employers in our area who had to telephone the tax office before the end of April and obtain new codes verbally, to be confirmed. Now the P6 notices are filtering through.

I had five in the post on the same day - in three separate envelopes.  Why not one?

How many hundreds, thousands maybe of pounds are wasted because HMR&C cannot deploy systems and technology to batch print and post all the notices that are due simultaneously to go to the same employer at the same address?

Why aren’t they e-mailed, anyway? 

Simple things, easy balls - probably the tip of an iceberg.

What is the point of collecting taxes to be wasted by this sort of inefficiency? 

Friday, 6 May 2011

Deep down in places you don't talk about at parties

It has to be right, whatever indignation some may feel, that people are asking the sort of questions they are in the aftermath of Bin Laden’s death. If nobody asked - or if they were silenced – how could we claim to be truly a democracy and stand for all that is good?

Appropriately, Question Time yesterday evening spent most of the time debating the death, as well as the manner in which key information was obtained.

It was perhaps unfortunate that the main question prompting the debate was predicated on the basis of an assumption that Bin Laden was shot with no intention or attempt by Special Forces to take him alive.

There was also the sub-debate about how key information may have been extracted at Guantanamo Bay using enhanced interrogation techniques (i.e. torture).

For me it brought to mind that powerful speech from Jack Nicholson at the climax of A Few Good Men:
Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...
You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall. We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use 'em as a punchline.
I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it. I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand a post. Either way, I don't give a damn what you think you're entitled to!

I guess that what many people would like to know and believe is that come the moment it was impossible to eliminate all the risks that Seal Team Leader reasonably anticipated against all the background knowledge and intelligence – that it just was not feasible to give the benefit of the slightest doubt to a dangerous opponent in the arena of war.

Paddy Ashdown, a wise man with perhaps unique qualification to comment on such situations, was right that a concept of non-judicial execution is beyond contemplation.  The vast majority of people can see that, if they struggle a little more with waterboarding.

One thing is clear - the rule of law must be sacrosanct.