So Who’s Not Reasonable?

So Who’s Not Reasonable?

Is your response reasonable?

How often does it occur that you think you’re acting entirely reasonably, but bizarrely someone else thinks you’re well out of order and your response isn’t reasonable?   Quite often, I suggest.  

As with normal life, work situations are no different.  A manager trying to get his team to improve can be perceived as overbearing or even bullying; but is he just doing his job, or is he acting unfairly?  Is it fair to sack someone for drinking whilst at work, or should he be given one last chance and a final written warning?  It depends on all sorts of things, of course, but people have different opinions.

To get round this problem, employment law has developed the concept that there is a “range of reasonable responses” when it comes to assessing whether or not an employer has acted fairly.  This is designed to force an employment judge or tribunal to consider whether an opinion other than their own is reasonable.   

But does this get us any further forward?  If you think that a different opinion to yours could still be viewed as reasonable, it follows you think both opinions are more or less on the same page.

Where this leaves us is that employment tribunals and judges only have to say they considered whether a different view to their own was “within a range” of potential reasonable views, conclude that it was not and that therefore it was unfair. 

But when it comes to their reviewing their own decisions on appeal, the judges turn things around: it has to be so gobsmackingly wrong that no other judge could (reasonably) come to the same conclusion.  In other words, it has to be a “perverse” decision.

But the perversity test is effectively the same as the “range of reasonable responses” test, just phrased differently. If a decision is not within the range of reasonableness or fairness, it logically follows that it must be obviously unreasonable or unfair.  How is this different to a decision being perverse?  It isn’t.

But the consequences are very different:  we are all far more likely to say that an opinion or action other than our own is unreasonable than to say it is perverse.  Judges are no different, and surprise surprise, they are far more prone to deciding the actions of others as being outside the “range” of reasonableness – and therefore unfair – than appeal judges are to overturn decisions of tribunal judges for being perverse. 

So why is it one rule for them and another for us?  Well, if employment judges could only overturn decisions or actions of others because they were perverse, there would be much less for them to do.  Conversely, if their decisions could be appealed because they were outside “a range” of reasonable decisions, there would likely be far more appeals. 

Or am I being unreasonable? 

If you  need guidance on this complex issue of reasonable response, do get in touch                  jj

 © Thornber Employment Law Ltd 

Why Take on Regular Employees? Summary of Seminar 06.02.14

Why Take on Regular Employees?

Employment Seminar, 6 February 2014

Employment lawyer Ben Thornber (pictured) asked this rhetorical and thought-provoking question at a seminar for business people in Fife yesterday.

Speaking of the rapidly changing face of the workplace, with outsourcing, agency staff, freelancing, part-time work and zero-hour contracts all part of modern life, Ben Thornber, a principal with Thornber Employment Law, in Dunfermline, said: “Why take on regular employees?”

He said the reason companies still want employees is that they give continuity and the emotional ‘buy-in’ of employees who are willing to do more to help the business become successful. There were also greater levels of control and good managers should be able to direct employees much more easily. It was also about levels of trust, competence and communication about what was required.

Ben, also a member of the United Employment Lawyers network, was addressing a seminar attended by small businesses in West Fife in the Jock Stein Suite at Dunfermline Athletic Football Club.

“It looks like we will have different types of working and fewer ‘employees’ on the payroll. If you’ve got employees on your terms of employment, one big issue is, what do you do when you want to change these terms? How easy is it? After all, business needs are changing all the time.”

Ben Thornber said increasing regulation and complexity of employment law should not frighten individuals and businesses.

“Of course, the increasing regulation of employment law does make life more complicated. At the same time, there is more opportunity to engage your staff in a different way. This might not be in the traditional employment context, but there are other ways to get the work done – which is what we all need to do in businesses.”

“For example, there are more and more opportunities for home working. People can set up a remote office because of modern technology. There are contractors or agency people, all showing a different way of work.”

He conceded that there was now a European definition of a self-employed consultant and a self-employed worker. “The concept of a ‘worker’ has come from Europe and it is slightly looser than the term ‘employee’ and there have been a lot of cases about the difference between the two. Frankly, it is hard to see the difference and I haven’t seen a single, simple definition.”

Guest speaker Malcolm Mackay, the founder of United Employment Lawyers, spoke about the massive changes in employment law in the past 25 years. He said that employers and HR professionals law required specialist legal help because of the mass of legal changes. But he said that common sense in relationships goes a long way.

“If you apply some basic rules you are going to get a lot of things right. Employment law is a very human area of law and the best single rule is treat someone as if you are on the other side of the desk, and perhaps facing disciplinary action or even dismissal.”

He said SMEs had to be flexible about the changing working environment. He recalls that on the transfer of undertakings initiatives, which emanated from Europe, he had encouraged businesses to embrace the law from Brussels because it was going to happen anyway. He said it had the effect of making contractors in the privatisation process focus on whether they were ‘cost cutters’ or managers.

Comments from attendees

“Today I attended the Employment Relationships Seminar held by Ben Thornber. I’m really glad I went, I learnt a great deal and it helped to alleviate any fears I may have when employing people, writing contracts or dealing with anything HR related. There was a relaxed atmosphere where you felt able to comment and ask questions. I feel happier knowing that Ben Thornber is on the end of the line should I ever need help.”

Laura Cuthbert
Managing Director
Laura’s Chocolates

“I found the seminar really interesting and it made me think about some of the hr issues we need to tackle in our business. The discussion about employees and social media was also highly relevant.”

Alan Watson
W D Factors Ltd

“Many thanks to you and Malcolm for a very interesting discussion on modern employment relationships. It was really helpful and reassuring to hear from others about their experiences in managing staff, and great to have your input on how to balance what’s best for the business with what’s best and fair for employees.”

Gabby Jordaan
Broking Manager
Borland Insurance

“Thank you very much for the breakfast seminar this morning, it was certainly a very good discussion following your introduction. It was good to hear like-minded individuals sharing their views, fears and experiences of the HR tangled web of legislation and all of the questions posed were certainly well handled by you and Malcolm. The format was relaxed and convivial and, I believe, encouraged a more open debate on some topical subjects. I look forward to attending more of your seminars in the near future.”

Steve Gray
HR/Business Development Manager
Condies Chartered Accountants

“I found the breakfast seminar this morning very practical and informative. Although we discussed a few scary areas of employment law which might catch me unawares, I was reassured by Ben and Malcolm’s common sense approach in how to deal with hr matters. The format encouraged good discussion on topical issues and I would encourage others to attend future events.”

David West
Custom House Property


Heard the one about the office Christmas party?……..

Heard the one about the office Christmas party?……..

Christmas party season is in full throttle, and tonight (Friday 20th December) will probably be the busiest of the lot.  There will be headaches in the morning, and quite a few people slowly piecing together the remnants of their memory into a sudden pang of “Oh, I didn’t do that, did I?!” Which is fine if it just meant silly dancing in a Santa hat, but less fine if it involved more dodgy behaviour.

Now, the usual employment lawyer piece is to warn employers of the dangers of the office party being an extension of work and therefore being liable for the actions of employees.  Potential harassment and discrimination claims can ensue (let’s face it, although it’s a cliché we’re usually talking about the male managers and more junior female staff).  And there’s little you can do apart from asking staff to have fun but still behave, and then investigate incidents and discipline where appropriate. 

Heard this already?  Yes, I thought so.

For me, what’s missing here is challenging why the employer should be liable for this kind of behaviour.

The old legal position was that unauthorised actions of employees could not bind the employer.  But this has now moved completely the other way, to one where in almost all circumstances the employer will be liable for any actions carried out at work – or an extension of work.  This reflects general public policy of requiring employers to accept wider responsibilities.

That said, there is still a defence – certainly as far as sexual harassment is concerned – that the employer will not be liable if it has taken all reasonable steps to prevent harassment by its staff.  These days, most decent-sized companies tick all the boxes as far as doing what they can to prevent sexual harassment: they have their rolling training programmes, usually paying a handsome fee to an external consultant in the process; rules on behaviour are implemented and updated; zero tolerance is widely known; etc.

Granted, many companies do not have this kind of robust prevention programme.  But for those that do, the question arises as to what more can they put in place to prevent bad behaviour of staff?  Not have the party at all, I suppose or ever hold any kind of social function.  Boo-hoo to that.  Sometimes, people behave badly and the only person who should be responsible for that is him/herself.  But we very rarely, if ever, see this defence being used, and certainly not with any success.  Why not?  

I’ve got a few ideas about why not, but that will have to wait till after the holiday season.  In the meantime, I’ve got an office Christmas party to go to this evening……    Merry Christmas!  Call us in the New Year if it’s all gone wrong at your Office Christmas Party

Grangemouth – What Role Employment Law?

Grangemouth – What Role Employment Law?

Nearly a month on, I find myself wondering what lessons can be learnt from the whole Grangemouth saga. 

The good news is that at least a significant portion of the jobs will be saved.  Closure would have sent to the grave yet more of our proud industrial heritage. 

Beyond that much has been talked about.  Issues range from botched union tactics, to global capitalism which puts profit above local communities and livelihoods.  There were also wider calls for the need to re-nationalise key assets, and even whether an independent Scotland would have made the situation better or worse.

But what I have not heard about in any of the debate, and what interests me as an employment lawyer, is where does employment law fit into the story?  You would have thought it would play a big part – but does it?

Employment law regulates rules and relationships between employers and employees.  It is based on the principle that the relationship is not an equal one and that employees need a certain element of protection.  In the old days, based on the concept of master and servant, that meant precious little.  In more recent times, there has been much more protection from dismissal and discrimination, on working hours, pay etc.  These are rights which affect workers as individuals.

Employment law also sets out the rules of engagement for workers organised as a group.  It governs the relationship between workers’ representatives – the trades’ unions – and their employers.  Employees have certain protection when they go out on strike, and there are rules about how unions are organised and how they run ballots. 

Some argue that the rise of individual employment rights has undermined the effectiveness of collective action.  This is because the more workers are protected individually, the less protection they need as an organised group.  Perhaps.  Or it could be that there is simply more focus on individual employment rights when collective action is less effective – there are far fewer discrimination claims in European Union countries which have stronger unions, such as Germany or France.

But whatever the balance between collective rights and individual rights in employment law, they only “kick in” when you have a job in the first place.  What they do not do is give you an economic right to a job, a right to earn a living. 

And this brings us back to Grangemouth.  The employees were negotiating from the point of view that they had a job, and could bargain on employment terms.  But if there are no jobs to go to, there is nothing to negotiate.  Employment law as we know it operates where there are jobs: beyond that is politics and global economics. 

Yet that is not to say minimum employment terms and pay should be sacrificed to keep jobs at any cost.  The argument is about the balance between the two.  So maybe our long earned employment law rights have a part to play after all?

Ben Thornber