It’s Time to Update Your Workplace Safety Program to Meet OSHA’s New Anti-Retaliation Guidelines

On January 13, the U.S. Occupational Safety and Health Administration (“OSHA”) issued its latest guidelines for employers to help them keep their workplaces “free of retaliation, including retaliation against employees who engage in activity protected under the 22 whistleblower laws” that OSHA enforces.  While adoption of OSHA’s recommendations is not mandatory, they are intended to outline best practices for all public and private employers and employers should strongly consider incorporating them into existing policies or programs or into a newly-created workplace safety program.   An anti-retaliation program should foster an environment in which all personnel (including temporary workers and other service providers) may raise concerns without fear of punishment or retaliation and allow employers to proactively address those concerns before they worsen or cause harm.

The advisory document lists the following five key elements of an effective anti-retaliation program:

  1.     Management leadership, commitment, and accountability;
  2.     System for listening to and resolving employees’ safety and compliance concerns;
  3.     System for receiving and responding to reports of retaliation;
  4.    Anti-retaliation training for employees and managers; and
  5.    Program oversight

The agency’s guidance notes that there is some flexibility for employers to develop and modify their programs based on their size, workforce make-up, and industry.  In addition, the guidance contains specific examples of the types of “subtle” retaliation that employers should prohibit and monitor as part of their compliance program, including reassignment to a less desirable position, reducing pay or hours, and isolating or falsely accusing an employee of poor performance.

Because this guidance provides a solid roadmap to assist employers in complying with their legal obligations and encouraging personnel to report hazards and injuries promptly with the security that they will be protected from retaliation for doing so, all employers would be well-served to take action to incorporate them into their programs.

That’s another fine mess – a comedy of errors in Tribunal’s penalty regime

High up on the list of candidates for 2014’s Most Nakedly Transparent Political Gesture Awards was the introduction of a new Section 12A into the Employment Tribunals Act 1996.

This was a measure designed to bring bad employers to heel in the Employment Tribunal by the imposition of financial penalties of between £100-£5,000 where the employer’s conduct was found not just unlawful (as that can happen to anyone entirely inadvertently) but also had “aggravating features”. No doubt many parties to Employment Tribunal litigation consider their opponents to have aggravating features, but applied to employer conduct, it means essentially deliberation, malice and repeat offences, more strictly applied for large employers with professional HR departments which should have known better.

The new rules got off to a flying start. From their implementation in April 2014 to the end of that year, a spectacular no penalties at all were ordered by the Tribunals.  By mid-2015 this had rocketed up to three, only one of them actually paid.  So on that basis, the recent disclosure that we are now up to 18 (12 paid) since April 2014 is real progress.  By any other yardstick, however, it is clear that the measure has been an abject failure – those 12 paid penalties have generated £17,750 for the Treasury in nearly three years, missing the anticipated annual receipts of £2.8 million by only 99.8%.

Part of this might be down to a reduced number of Employment Tribunal claims following the introduction of fees, but that was known about at the time the penalties were introduced, and even assuming a drop-off rate of 70%, this does not begin to justify a miss of that magnitude.

Caroline Lucas MP is quoted in the Law Society Gazette as saying that this means that “rogue exploitative employers” are getting away with “evading justice“, but that is clearly political hyperbole just as silly as that driving the introduction of the fines in the first place.  We think that where Tribunals find malice or other high-handedness by employers, Employment Judges would far sooner help the claimant by an award of costs or aggravated damages than help the Treasury through a fine.  Moreover, the costs knife can cut both ways, allowing malicious or otherwise unreasonable claimants to feel the sharp edge too.  One might say that the Employment Tribunal’s costs jurisdiction could sometimes be exercised a little more incisively, but in reality it is all that the Tribunals need to convey strong messages about a party’s conduct.  The idea that a penalty of a few extra hundreds or thousands (halved if paid quickly, so as clearly a fund-raising exercise as parking tickets) is going to deter the genuinely malicious or recidivist employer (especially a large one), is and always was fundamentally ill-conceived, as these new figures show.

Which takes us back to the question of Tribunal fees and the Government’s long-awaited report on their impact on justice. This is currently a year late, and still not finished.  Justice Minister Oliver Heald told the House of Commons last week that when “I said that I would produce it as soon as possible in the New Year, I meant it“, though apparently he forbore to mention which New Year he had in mind, exactly.

Save time, save money, save stress – book now

For those who missed it last time, here is another chance to sign-up for the 1st February conference of the Civil Mediation Council from 3pm at Lloyds of London.

This conference is aimed at HR and legal practitioners considering the introduction of mediation as a proactive part of dispute resolution in their workplace, but who may be concerned or curious about the process of doing so successfully. How do you get past corporate inertia or management/employee preference for the comfort of familiar old grievance procedures, even though they generally produce only legal outcomes and not real resolutions? What is the answer to the common push-back that you could go through the mediation process and still not be guaranteed a solution, or that it merely allows one party to delay the formal process?

We are delighted to be invited to speak at this important session. Our presentation combines employment law principles with our mediation qualifications to focus specifically on the benefits which an employer can obtain from the offer of mediation in a workplace dispute even if one party or the other is unwilling or no agreement is reached. We will be sharing a platform with a number of household names, including Acas, Tesco, Sony and the BBC.

The CMC tells us that over 100 people have signed up already – spaces are limited so please use the link above as soon as possible if you wish to join them at what promises to be a lively and informative event.

US Supreme Court to Resolve Dispute Over Enforceability of Class Waivers in Arbitration Agreements


As followers of our blog know, we have been closely watching developments over the past few years involving the tension between the National Labor Relations Board and the courts concerning whether arbitration agreements that require employees to resolve most employment-related disputes in individual arbitration proceedings, and bar the use of class or collective action litigation procedures in court, violate the rights guaranteed under Section 7 of the National Labor Relations Act.  See our prior posts here, here, and here, which discuss the split in circuits that emerged on this issue, with the Second, Fifth, and Eighth Circuits holding that class and collective action waivers in arbitration agreements are valid and enforceable, and the Seventh and Ninth Circuits concluding the opposite.

On January 13, the United States Supreme Court agreed to hear three cases which each involve this issue.  Hopefully, this means that by the end of the Court’s term in late June or early July 2017, we will have a definitive answer, and employers and employees alike will know, once and for all, whether this arrangement is lawful.  As before, we’ll continue to update with further developments.

Do you want the good news or the bad news? Welcome back to Judges’ opinions

Long-time Employment Tribunal practitioners will recall more or less fondly the days when every so often the Judge would suddenly send the parties out of the room mid-hearing and then lean towards one of the representatives and say incredulously “Come on, really?”.

When it was said to the other side, that was absolutely the Overriding Objective in action – a short, punchy, accurate and incisive intervention which almost always led to an adjournment while the chastened lawyer took urgent settlement instructions. However, when said to you, it was of course evidence of pre-determination, bias and a singular failure by the Employment Judge to understand any of the issues, as a result of which the practice pretty much died out.

But now it is back. By Presidential Guidance issued late last year the Employment Tribunal has formalised the concept of early neutral evaluation or “judicial assessment”.  Essentially this represents an opportunity for the Employment Judge to express a preliminary view as to either the legal merits of the case and/or quantum if liability is found.  There is now a box asking the parties about this in the standard Case Management Discussion agenda.  So should you tick it to express an interest or not?

What you would be inviting, if the other side agrees, is not a ruling or decision of any sort, but merely a heavily-caveated view expressed in private as to the perceived merits of the claim or the possible range of compensation which might be awarded. “Heavily caveated” in particular because at that time the Employment Judge has not seen or heard any of the evidence and so is working entirely from the pleadings, which may obviously be of widely variable detail or quality.  That said, the Guidance is clear that the preliminary assessment should be carried out only after the rest of the CMD has been completed, so there will at least be a clear understanding on the Judge’s part of the issues at stake and therefore of the factual and legal components required to make out each particular head of claim.

It will be made clear to the parties that the Employment Judge giving the assessment will not hear the main case and that his/her notes of it will not go on the case file, so there is no risk of pre-determination. It will also be stressed that the parties are free to ignore the assessment and to proceed with their case, however damning is the Judge’s view.  This is not a replacement for a strike-out or deposit order, although it is obviously possible that if a party feels sufficiently buoyed up by a judicial assessment, it could then apply for that as well.  Judicial assessment is also a one-shot offer, available at the start of the proceedings or not at all.  You don’t get to re-check your continuing prospects of success down the line when case preparation is further advanced.

The Guidance makes clear that the judicial evaluation may not be mentioned in the main hearing, but does not answer the question of whether an initial unfavourable assessment could be used against a losing party as evidence that it pursued its claim/defence unreasonably and so should be exposed to a costs order. Our expectation is that in principle it could, but that very little weight would probably be attached to the assessment in most cases specifically because of its very preliminary, high-level and pre-evidence nature.

But that is not really what this device is for. The Protocol to the Guidance says (blurring the lines between judicial assessment and the rest of the CMD only slightly) that “an early assessment of the case… may assist the parties in identifying what the case is really about, what is at stake, and may clarify and narrow the issues and encourage settlement. This may lead to resolution of the case by agreement between the parties before positions become entrenched and costs excessive, or may shorten and simplify the scope of hearings“.

So if your case is reasonably strong and properly set out in your Tribunal pleading, and your opponent’s claims or compensation expectations are all shouting and whimsy, judicial assessment is worth seeking. If your claim or defence is rather more tactical or speculative, however, or if you have an aversion to receiving bad news from messengers whom you cannot then shoot, maybe better not.

EAT says even expired warnings can be taken into account when dismissing an employee. Sometimes.

In Stratford v Auto Trail VR Ltd the EAT held that an expired warning can be taken into account when considering whether a dismissal was fair or unfair under s98(4) Employment Rights Act 1996.

Mr Stratford had the sort of disciplinary record which requires real commitment (17 incidents in less than 13 years). The most recent sanctions included a 9 month disciplinary warning in December 2012 and a three month warning in January 2014. The final straw came in October 2014 when the Claimant was spotted with his mobile phone in hand on the shop floor – “strictly prohibited” under the employee handbook.

The decision was taken by manager Mr Bristow to dismiss Mr Stratford, not as a result of the phone incident alone, for which he was issued a final written warning, but on the basis of its being his 18th formal offence, with the employer stating (seemingly with no little justification): “you have given me no reason to believe that we will not be having a similar conversation in the near future… you do not understand the consequences of your actions and I do not believe this will change”.  

At the time of the dismissal all prior warning periods had expired. The issue was therefore whether Mr Statford could be fairly dismissed for something short of gross misconduct even without any live warning then on file.

Instinctively you would say no but in the ET the Judge ruled: “It is absolutely plain that the Claimant’s disciplinary record and the belief that as a consequence of that record the Claimant would not improve were the reasons why Mr Bristow decided to dismiss. In my view Section 98(4) permits the consideration of that record. Those facts are to be put into the balance in applying section 98(4). Also to be put into the balance is of course normal employment practice that once a warning has expired then the slate should be wiped clean.”  On that basis, the dismissal was fair.  

The appeal argued that all previous disciplinary warnings had expired and as a result taking them into account in the decision to dismiss was simply wrong as a question of law.   In other words, said Mr Stratford, once a warning has expired it has to be treated for disciplinary purposes as if it had never existed, so the mobile phone incident should have been regarded in effect as a first offence.  [This was consistent with some prior authority, including the fabulously unjust decision in Malin –v- Bevan Ashford in 1995.  Mr Malin was given on 30 January a final warning dated 29 January to run “for 12 months from the date of this letter”.  On 29 January the following year, having no doubt counted down the days in the meantime, Mr Malin misbehaved again.  It was found that the final warning expired at midnight on 28 January (12 months from 29th), and therefore Mr Malin’s dismissal was unfair, all for the want of a handful of hours.]

The EAT disagreed. It could see no error in law in the ET decision having considered the Claimant’s previous record and the eminent sense of the manager’s prediction as to how the future was going to go if the Claimant were not dismissed.  “The fact of the previous misconduct, the fact that a final warning was given in respect of it and the fact that the final warning had expired at the date of the later misconduct would all be objective circumstances relevant to whether the employer acted reasonably or unreasonably and to the equity of the case and the substantial merits. 

Lessons for employers

This decision means that employers can in principle take into account an employee’s expired disciplinary record as part of the overall circumstances considered when dismissing an employee. However, that principle may be limited in its practical implementation. The decision in particular notes the sheer number of incidents here and the fact they covered the entire period of employment.  This was not a case where the claimant had one previous warning which had expired, or where his poor conduct over a period was unrepresentative of his overall service.

It must make sense that one of the key questions in considering reliance on a past warning is not just how long the warning was stated to last on its face but how long the message in it could be expected to remain in the mind of the employee. It would be a hard argument by the employee that the expiry of a warning legitimised acts of misconduct which as an issue of fact he knew full well were not acceptable to his employer.

This may also be a lesson to employers with regard to ensuring warning periods last an effective length of time in the first place. It is not contrary to the ACAS Code to recognise periods of unwarranted behaviour by employees and ensure periods reflect this appropriately: There may be occasions where an employee’s conduct is satisfactory throughout the period the warning is in force, only to lapse very soon thereafter. Where a pattern emerges and/or there is evidence of abuse, the employee’s disciplinary record should be borne in mind in deciding how long any warning should last.

Ohio Employer Alert: Weapons Policy Review Needed; No Local Sick Leave

During the December lame duck session, the Ohio legislature passed SB 199. Among other things, the law provides that a business entity, property owner, or public or private employer may not establish, maintain, or enforce a policy or rule that prohibits or has the effect of prohibiting a person who has been issued a valid concealed handgun license from transporting or storing a firearm or ammunition inside the person’s privately owned motor vehicle. Thus, under SB 199 employers cannot prevent employees who are licensed to carry guns from keeping those guns locked in their own car in the company parking lot.

Employers with employees in Ohio are advised to review their weapons policies for compliance with the new law, which is effective March 20, 2017.

The legislature also passed SB 331, which (among other things) prohibits political subdivisions of the state from passing laws or otherwise regulating a number of areas of employment, including but not limited to:

  • Minimum wage laws that exceed the state wage rate;
  • Fringe benefits , including leaves of absences, sick pay, vacation, and other benefits;
  • Requiring on-call, show-up, or reporting pay; and
  • Requiring advance notice of scheduling changes.

SB 331 is effective March 20, 2017.

Although Ohio could still pass a statewide sick leave law, SB 331 will avoid the patchwork of local sick leave laws that is blanketing other states, such as California and New Jersey, and creating headaches for employers. While this is good news for employers with employees in Ohio, multi-state employers still have to contend with local laws on all of the above in states outside of Ohio. For example, Seattle recently passed a scheduling ordinance, several jurisdictions require employers to provide reporting pay for employees who show up but are sent home without performing a minimum amount of work, and of course, as all multi-state employers are aware, an increasing number of jurisdictions require employers to provide paid sick leave for their employees.

Immigration Changes in 2017: New High-Skilled Worker Rule Provides Mobility for Employees and Predictability to Employers

The new year brings with it changes in immigration law, including implementation of the Department of Homeland Security’s (DHS) final rule entitled Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers (“the new rule”). In practice, the new rule codifies several long‑standing DHS policies and practices, and creates several new rules mostly aimed at improving employees’ employment mobility and improving an employer’s ability to hire and retain employees in the green card process.

The new rule goes into effect on January 17, 2017, just three days before inauguration day, seen by many as a welcome bit of clarity in the face of president‑elect Trump’s still‑to‑be established immigration policies. Unlike the executive actions Trump has threatened to revoke on his first day in office, the new rule, created through the lengthy rulemaking process, will take significant time and effort to rescind.

The following are several of the key components of the new rule:

60-Day Post-Termination Grace Periods for Most Nonimmigrants

A new 60-day grace period will provide many terminated foreign workers an additional 60 days in the U.S. Prior to the rule, most terminated foreign workers were deemed “out of status” upon termination and had to either rely on government discretion to allow them to change employers or change to a visitor status in order to avoid falling out of status.  Now, foreign workers in E-1, E-2, E-2, H-1B, H-1B1, L-1, O-1 or TN classifications, and their dependents, will remain in status for 60 days following termination or until the end of their authorized validity period, whichever is shorter.  The 60 days does not include employment authorization, but it does allow the foreign worker to wrap up their affairs in the U.S. or attempt to transfer and maintain status with a new employer.

10-Day Pre- and Post-Validity Grace Period

Foreign workers in E-1, E-2, E-3, H-1B, L-1 or TN classifications, and their dependents may now enter the U.S. up to 10 days prior to the start of their validity period and leave the U.S. up to 10 days after the validity period ends. No employment is authorized during these periods, but the government will allow for flexibility of scheduling travel and keep many foreign workers from needing to enter as a visitor prior to their employment’s start date, or needing to change to a visitor status in order to close out their affairs in the U.S. prior to departure.

Post-Sixth Year H-1B Extensions

H-1B visa classification allows for a total of six years of validity (usually in two three‑year increments). The final rule codifies a long‑standing practice as authorized by a 2001 law, the American Competitiveness Act of the 21st Century (AC21), by allowing a foreign national to use a Labor Certification (PERM) filing at least one year prior to the end of the H-1B sixth year or an approved I-140, Immigrant Petition, to extend their stay in H-1B status beyond the sixth year.  The final rule also requires that the foreign national apply for adjustment of status within one year of their priority date becoming “current” (or immigrant visa becoming available) in order to remain eligible for post sixth year H-1B extensions based on an approved I-140.

H-1B Recapture of Time Outside the United States

Once an H-1B foreign worker begins his or her H-1B validity period, the time spent outside the United States on international trips longer than 24 hours  can be “recaptured” and added onto the six years of H-1B validity.  So if an H-1B worker began H-1B status on January 1, 2010, but spent six months outside the U.S. during the next six years, their H-1B status could be extended from the normal end of January 1, 2016 until six months later:  July 1, 2016.

Time is recaptured through a new H-1B petition that includes evidence of travel, such as passport stamps, DHS entry and exit records, plane itineraries, and the like.

H-1B portability Start Date and Successive H-1B Portability Petitions

A foreign worker lawfully in H-1B status is authorized to “port” to a new H-1B employer through the new employer’s filing of a non-frivolous H-1B petition. The new rule codifies the longstanding practice that the foreign worker may begin employment at the new employer as soon as the new H-1B port petition is filed or as of the requested start date on the petition, whichever is later.  In practice, many foreign workers in H-1B status prefer to wait for approval of the port petition prior to leaving the initial H-1B company since denial of the port petition after starting with the new employer would effectively leave the H-1B foreign worker without a job.

An H-1B foreign worker with a pending H-1B “port” petition filed by a new employer, may file a successive “port” petition from a third employer even while the first “port” petition is still pending. The foreign worker must at all times remain eligible for H-1B status, and each petition meets the individual requirements to qualify for H-1B status, but in theory, the long adjudication times for an H-1B petition allow a foreign worker to potentially have successive change of employer petitions filed on his or her behalf.  In practice, an employer should consult closely with an immigration attorney if they are filing on behalf of an employee with an already pending port application.

Increased Protections for I-140 Priority Date Retention

Foreign Nationals with an approved I-140 Immigrant Petition may retain their priority date even when the I-140 employer withdraws the I-140, as long as withdrawal occurs at least 180 days after approval. Prior to 180 days, the withdrawal stands.  Similarly, if an I-140 employer’s business is terminated at least 180 days after an I-140 is approved, the I-140 remains valid for priority date purposes, whereas termination of the business prior to 180 days acts to rescind the I-140.

These protections do not apply if DHS finds that the approval was based on fraud, material misrepresentation, invalidation or revocation of the underlying labor certification, or material error.

Job Portability for Certain Green Card Applicants

Changing jobs or employers after obtaining an approved I-140, but before receiving your green card, usually requires the foreign worker to obtain a new I-140 based on the new job or employer, although in many cases they can retain their priority date from the original approved I-140. The new rule clarifies relevant portions of the AC21 which permit green card applicants who change jobs or employers to continue to use their old approved I-140 petition as long as their application for adjustment of status (I-485) has been pending for at least 180 days and the new job is in the same or similar occupational classification as the job on the approved I-140. The foreign worker must submit Form I-485 Supplement J along with supporting evidence to prove that the new job meets the portability requirements.

Automatic Employment Authorization Document Extensions

Applicants who file for timely renewal of their Employment Authorization Documents (EADs) will be granted an automatic extension of up to 180 days while the renewal application is pending provided it was filed before the initial EAD expired and for the same classification.   To date, most applicants who filed for EAD extensions were forced to wait until the physical card arrived several months later, which often caused a gap in employment authorization.  The provision also eliminated the government’s requirement to adjudicate EAD applications within 90 days.  Employers will need to be aware of this new provision when revalidating an employee’s Form I-9.  One caveat, this new provision will not apply to EAD renewals for eligible spouses of E-1, E-2, E-3, H-1 or L-1 workers since their work authorization requires initial approval of the underlying status.

“Compelling Circumstances” Employment Authorization

Foreign workers in E-3, H-1B, H-1B1, L-1 and O-1 status with and approved I-140, but who are still waiting for their priority date to become current, may now apply for one‑year increments of employment authorization. To qualify, they must show that they have an approved I-140 in EB-1, 2 or 3 categories, that the I-140 is not current, and that “compelling circumstances” favor employment authorization.  Although no definition is provided for compelling circumstances, examples are provided, such as employer dispute or retaliation, serious illness or disability, a significant disruption to the employer, or substantial harm to the applicant.  In certain circumstances spouses and children of the foreign national may also apply for one-year employment authorizations that match the foreign worker’s grant.

Cap Exempt H-1B Employers

The government allots 85,000 H-1B visas per year (65,000 standard H-1B visas and 20,000 H-1B visas for graduates of U.S. Master’s degree programs or higher). By law, certain employers are exempt from the quota and may apply for an H-1B visa on behalf of an employee at any time, even when the normal 85,000 visas are used up.  The new rule clarifies several definitions used to qualify certain “cap-exempt” employers.  These include new definitions for  nonprofit entities that are “related to or affiliated with” institutions of higher education and/or governmental research organizations, as well as employment of H-1B workers at such entities by employers that would otherwise not be considered “cap-exempt.”  The rule clarifies and replaces prior USCIS memoranda and contradictory guidance.

In some cases, H-1B foreign workers at a cap-exempt employer would simultaneously take another H-1B role at a cap-subject employer. The new rule establishes that the cap-subject petition cannot have a validity period that exceed the cap-exempt petition, and that termination of the cap exempt position will automatically subject the employee to the cap.  In this case, if the employee was not previously subject to the cap and there are no H-1B visas are available under the cap, USCIS may revoke the cap-subject petition.

Stay tuned to this space for more updates and developments as the new administration grapples with these new regulations and starts to implement its own.

Consultation on Employment Tribunal reform proposals – send for Judge Dredd

Last month saw the publication of the Government consultation document on reforming the Employment Tribunal system, a joint production between the Ministry of Justice and BEIS. For when the conversation falls into a flat spin at your next dinner party, here are the highlights, using the word at its most generous.

In summary, the reforms are intended to restore the Tribunal system to what it was intended to be when first created in 1964 – just, proportionate and accessible – before those objectives were overtaken by the increased complexity of the law, greater use of lawyers and chronically inadequate funding. So far so good, but look more closely at the document and we see also the wish to reduce the costs of the Tribunal system to the Government still further.

How will all these partially conflicting objectives be met? Here the consultation document is rather vaguer.  The basic planks of the reforms suggested will be these:

  • Digitising the whole claims process” to speed up the resolution of disputes and allow users to “engage with the Tribunal at times and locations convenient to them“. No suggestion is made of night-shift Tribunal judges or clerical workers, so it is unclear how this really represents any material step forward over ordinary email.  According to one paragraph clearly written by Judge Dredd, this will help “citizens to present their own cases simply and obtain justice more swiftly“.
  • A reduction in complexity in the language used in the Employment Tribunal“, though it is already one of the more informal judicial forums in that respect. We must hope that there are no pointers to how this will be done in the language of the consultation document itself which (including the Foreword signed by two Ministers) contains serial grammatical and punctuation errors, unused definitions and repeated use of the proposition that “panel members without legal expertise are asked to sit on panels according to their expertise [vis none, presumably] so that claimants can be confident that the decisions will be fair and informed“, or at least as fair and informed a legal decision as you can get from a panel member without legal expertise.
  • The delegation of some case management functions to trained administrative staff under judicial overview, which is clearly sensible.
  • The Ministry of Justice is still reviewing the impact of the introduction of Tribunal fees, a report originally due at the end of 2015, no doubt puzzling over how to square its new-found interest in making the Tribunal system more accessible with the inescapable conclusion that the fees it so strongly supported did exactly the opposite.

What the consultation document does not include is any detail at all of how in practical terms it is proposed to make access to justice faster and simpler and cheaper without meaning that it is no longer justice. There is no discussion of whether the existing ET powers, properly and robustly wielded, could achieve this – limits on adjournments and the size of bundles, more vigorous use of deposit and cost orders, more pressure on parties to particularise their cases properly at the outset, a more interventionist cutting off by the Judge of trivial or irrelevant lines of evidence or cross-examination, etc.  In essence, all the delays and obstacles in fighting Tribunal proceedings are blamed here on the Tribunal system, whilst practical experience shows that in fact much of the problem can lie with the parties themselves, lawyers included.

In the end, digital or not, justice surely requires the witnesses to be heard, the papers to be read, views on credibility formed and often complex law considered. That takes a certain amount of time.  To the extent that these reforms subordinate those considerations to speed, simplicity, political gain or (to a degree) cost, that may no longer be justice.  It is way too early in the day to prophesy failure (after all, what could possibly go wrong where Government and major IT projects are concerned?) but it is hard to see at this stage who actually stands to gain from most of these proposals, except perhaps the Treasury.

EAT stresses line between disability and unhappiness in the workplace

Fans of the unnecessary medicalisation of management issues in the workplace will be sadly disappointed by a new Employment Appeal Tribunal decision at the end of December. For everyone else, Herry – v – Dudley MBC represents a very sensible and timely reminder of where the line lies between being disabled on the one hand and just really miserable at work on the other.

Mr Herry’s day in the EAT was mixed. It sent back for reconsideration a costs order made against him by the Birmingham Employment Tribunal because he had clearly acted unreasonably in pursuing over 39 days in Tribunal more than 90 separate allegations covering over 4 years in the face of advice from multiple sources that they were all baseless, as indeed it proved.  However, even though the size of the award was such that his then disposable income would have allowed the debt to be discharged in just 415 years (without interest), possibly reducing to under a century if he were lucky enough to secure a new job, that was felt to be rather on the high side.

On the other hand, the EAT rejected Herry’s claim that his work-related stress constituted a statutory disability, even though by the relevant time he had been off work with it for over a year.

The EAT took a hard look at what actually was keeping Herry off work. It was careful to recognise that work-related issues can result in real mental impairments, but did not consider that to be the case here – almost all the evidence pointed to Herry in fact being reasonably well, and technically fit for work, but simply having painted himself into a mental corner through the vigour of his reaction to adverse events at work.  He was in other words suffering from an “adjustment disorder”, also known as “situational depression”.  Key to this complaint for our purposes is that it is caused by factors external to the employee and almost always resolves itself within a few months of those factors being addressed.

Bringing a wan smile to employers everywhere, the EAT Judge said “experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, and refuses to return to work, yet in other respects suffers no or little apparent adverse effect on normal day to day activities … an Employment Tribunal is not bound to find that there is a mental impairment in such a case. Unhappiness with a decision or a colleague, a tendency to nurse grievances or a refusal to compromise (if these or similar findings are made by an Employment Tribunal), are not of themselves mental impairments: they may simply reflect a person’s character or personality“.  Unimprovable, it seems to me.

Lessons for employers

Getting to the root of the employee’s claimed stress issue quickly is essential. The employer needs to ask up front specifically what about the way he has been treated at work has led to his absence and what specifically he would consider to be his desired remedy.  Both of these are necessary components for the proper consideration of the employee’s issues, whether or not via the formal grievance procedure.  Then you have a choice:

You can then push the absent employee into that procedure if you wish, hopefully safe in the knowledge that his doctor will usually agree that the fastest route to recovery for the patient is to have the argument and get it behind him as soon as possible. But a formal grievance procedure is like an artillery duel – each party’s position gets more entrenched and his animosity for the other grows as quickly as his willingness to leave his foxhole shrinks.  Trying to bring an alienated employee back to work by shelling him with HR letters will be an uphill struggle.

One better way forward in such a case is to propose a mediation or facilitation between the employee and the person he blames for his absence. This may or may not work but a mediation does not have to succeed to assist the employer:

  1. The employee may be persuaded that his understanding of what happened or why was misplaced, removing his mental blockage about a return to work. The manager may equally learn to avoid the employee’s own psychological triggers so that a new and more mutually respectful relationship can be created.
  2. Alternatively, the mediation may fail. That failure may reinforce the employee’s views of the rightness of his decision to stay away from work, but equally it allows the employer to move a major step closer to a reasonable conclusion that things have become irretrievable, and hence that the employee has to go.
  3. Or the employee may have worked himself into such a lather about the manager that he will not meet with him at all, even in the safe space of a mediation. Bearing in mind that the fastest way to address this sort of medical complaint is to deal with the external stressor, such a refusal could constitute a failure to comply with a reasonable management instruction. It could also be seen as akin to any incapability case where the employee consistently fails to comply with doctor’s orders and so prevents or delays his own recovery.

Relationships which the employee believes so broken as to justify his removing himself from work with “stress” almost never mend themselves unaided. Statistics show a sharply reduced chance of a successful return after absence of 6 weeks or more. It therefore makes good sense to offer this mediation option at the earliest opportunity. If it works, fab, but even if it does not then the employer’s hand in any decision to dismiss in a case like Herry is greatly strengthened, whether or not the employee’s absence is found to be by reason of a disability.