An extreme view of employment law

If you read magazines aimed largely at commercial lawyers, you’ll be familiar with the sort of article in which a solicitor argues against some proposed or actual piece of regulation, saying business would be better off without it. Sometimes they have a point, but often they’re extremely predictable, and merely reflect either a wish to be heard saying things the writer thinks his or her clients want to hear, or else complete ideological capture by those clients and their worldview. Mildly irritating over coffee in the office but no big deal, and arguably no different from immigration lawyers railing against the iniquities of immigration law, say.

But Fox lawyer Michelle Chance’s piece in the Telegraph today does require comment, I think. It’s a plea for a radical simplification of the “minefield” of employment law, raising the suggestion that employers should to be able to sack workers at will, Victorian-style. She says

for an employer to fire an under-performing employee, the law requires a performance management process, which involves setting goals and objectives for the employee to meet over a specific timeframe, during which his performance will be monitored. This usually takes at least a month. The employee must be given the tools to enable them to try and meet the objectives that have been set for them which will take even more time.

This seems to me exaggerated: she makes it sound as though the law requires a bureaucratic process to be gone through in every case. But it doesn’t. It requires an employer who fires an underperforming worker to act reasonably in doing so. And not even that in many cases, since employees who’ve worked for less than a year have no right at all not to be unfairly dismissed, something right-wing and business commentators on employment law often fail to mention for some reason. So the worker who Michelle Chance is impatient to sack has presumably performed adequately for a year, if the employer has to worry about their rights. Has his or her performance never been monitored in any way in all that time? If not, how do you know they’re underperforming? Why’s it so unreasonable to expect a few weeks of thinking about their performance, and how to improve it, before they’re simply sacked?

She goes on to say

In the case where an employee cannot deny gross misconduct, for example when he has been caught red-handed with his fingers in the till, his employer must still call him to a disciplinary hearing, at which he has the opportunity to explain his actions accompanied by a colleague or trade union representative of his choice. The allegations against him must be set out in writing and he must have sufficient time to consider them and prepare for the hearing. Investigations must be carried out and witness statements taken, all of which the employee is entitled to see before the hearing.

I’m not at all sure it’s right to say an employer must take witness statements: neither the ACAS Code of Practice (which is legally binding in the sense that Employment Tribunals will take it into account and may increase any compensation for unreasonable failure to follow it) nor the non-binding guidance mention a need to take them – simply to disclose them to the employee in advance of a disciplinary hearing if they exist.

More importantly, though: is it really so shocking that even an employee who has been “caught red-handed” doing something wrong should have a chance to know what they are accused of and to give their side of things? What does it mean to say someone has been “caught red-handed”? I’m not sure she’s really thought about that beyond accepting the vague idea unquestioningly. Does it mean someone says they saw them doing something wrong? An accusation of sexual harassment would fall into that category. And what if someone really were “caught red-handed” in a truly undeniable sense, say by being recorded on CCTV fighting with a colleague or stealing from the till. Police involvement and instant dismissal might well be reasonable. But would an employer really be harmed by showing the worker the tape and hearing what he or she had to say? There might, just might, be some explanation for punching someone, or at least some important background about what the punchee said or did that the employer should know. There might be some important background fact, such as that the supervisor told the worker to borrow money from the till, something the employer really needs to know. But they never can know if they’re not listening.

It’s worth noting that Michelle Chance presents every element of basic fairness – holding some sort of hearing; putting the allegation in writing, surely not a very onerous idea; allowing the worker a bit of time to prepare; allowing them some source of help – as tiresome burdens or “needless obstacles”. The truth is that an employer can sack a worker fairly on the basis of a reasonable suspicion of serious misconduct. The odds are not stacked in a worker’s favour at all.

I’m afraid this article is an example of some narrow conventional thinking among some business circles. It also reflects the political ideology of the Thatcherite right. But it’s unbalanced, and unrealistic about power in the workplace and the behaviour of some employers. I hope no mainstream politician wants to take us to Michelle Chance’s world.