Back to basics

Whilst its true that Team HB give advice that is broad and varied and at times, dare we say it, entertaining!   A frequent and consistent element of our advice centres around helping clients “establish the facts”.

 

Be it capability or conduct it is all about the facts. Sounds simple and straightforward? Yet it is something many employers get wrong and it is at this point that risk becomes an issue. Even in matters were there may well be a potentially fair reason for taking action against an employee, an inadequate investigation can render any subsequent dismissal unfair.

 

Establishing the facts is an investigation. It is about listening, questioning, probing and challenging inconsistencies (the part everyone misses out) That’s it! Employers need to stick to the basics and stop living in fear of getting it wrong as that only leads to …… getting it wrong!

 

When dealing with disciplinary matters where misconduct is alleged, employers have to satisfy the 3 point “Burchell” test (British Home Store Limited v Burchell 1978).

 

The three main elements of the “Burchell” test are as follows:

 

That at the time of dismissal;

1.     The employer genuinely believed that the employee was guilty of misconduct

2.     The employer had reasonable grounds on which to base that belief

3.     The employer had carried out as much investigation as was reasonable in the circumstances of the particular case.

 

Taking the first two steps out of order and assuming the facts are derived from the employee in question and any/all relevant witnesses, written evidence or CCTV footage then it is realistic to conclude that one would be entitled to base their belief on such grounds. The “facts” established are clearly influential in allowing the employer to form their belief.

The third element is, for some, the tricky part. How much is as much investigation as was reasonable? Team HB say that it depends on relevance and inconsistences. Our clients have called us before this point but if you are going it alone then keep it basic.  If the employee admits their wrongdoing/underperformance then naturally the investigation can be limited, if on the other hand there are matters denied and, or are inconsistent with the allegations then a little more homework is required. At this point, it is necessary to stick to matters of relevance so not to get lost in an abundance of information that detracts from the matter in hand.

Call our employment advice line on 0141 404 6858

The landscape changes with an overhaul of Employment Tribunal Fees

Employment tribunal fees will be scrapped after UNISON won a landmark court victory against the government in the case of Unison v The Lord Chancellor on 26th July 2017.  Experts are suggesting that UK employers can expect a hike in employment tribunal fees …….. and that could be up to 70%!

The Supreme Court has ruled that the government was acting unlawfully and unconstitutionally when it introduced the fees four years ago, basing its decision on the fact that fees were “inconsistent with access to justice” and had resulted in a substantial fall in the number of claims being brought.

TUC general secretary, Frances O’Grady said: “This is a massive win for working people. Too many low-paid workers couldn’t afford to uphold their rights at work, even when they have faced harassment or have been sacked unfairly”.

Business leaders however expressed concern about the court ruling believing the judgement “opens the door to a spike in malicious or vexatious claims”. Employers are concerned about a return to the past, when despite winning the majority of cases, companies would often settle to avoid a costly and protracted process even when their case was strong.

Whats our take on it? Well, whilst there will no doubt be an increase in claims against employers, (remember there is no barrier to making a claim now) whether the increase proves to be as worrying as 70% remains to be seen.

Defending a claim in the employment tribunal is always going to be a gamble for an employer as employment legislation is based on civil law; that is, here is no “proof” required.  That side of the coin will not change. Defending a claim often comes down to credibility between the parties, but where an employer can show that they have acted reasonably in all of the circumstances (when dismissing that is,!) whether or not the employee has paid for their right to be there will make no difference to the outcome of the claim.

Documenting matters and acting reasonably is what we do.  We say employers do not need to sweat, its business as usual !

Dallas McMillan Solicitors

The services provided by Holly Blue at this time are in employment matters only. This area of practice is what we know, and do best. It’s our favourite!

 

We do however recognise that our clients would benefit from a range of legal services and have accordingly partnered with a legal firm who exhibits our values and favours their own practice areas with the same conviction and gumption as Holly Blue.

 

Accordingly, we are delighted to introduce our partnership with Dallas McMillan Solicitors.

 

Dallas McMillan are a Glasgow city centre based firm who offer a full range of legal services from litigation to private client work. As a client of Holly Blue, you can benefit from our partnership with Dallas McMillan with access to the following discounted legal services:

 

LITIGATION

(1) Personal Injury Claims

Dallas McMillan have a reputation as one of Glasgow’s most experienced and knowledgeable personal injury firms.  Their personal injury team contains two Law Society Of Scotland Accredited Experts in Personal Injury and they represent clients nationwide, as well as acting for two of the country’s largest Trade Unions. They deal with accidents at work, road traffic accidents and public liability claims among other types of claim, and, as a Holly Blue client, Dallas McMillan will act for you on a No Win No Fee basis.

 

(2) Clinical Negligence

Dallas McMillan’s clinical negligence team specialise in claims concerning accidents at birth and surgical accidents. They will represent all Holly Blue clients on a No Win No Fee basis

  

(3) Commercial Litigation

Dallas McMillan’s Commercial Litigation team handle all forms of commercial litigation from simple debt recovery to corporate insolvency.

 

COMMERCIAL PROPERTY AND CORPORATE WORK

Dallas McMillan’s Commercial Property team is headed by the firm’s Senior Partner Forbes Leslie, a practitioner with over 25 years’ experience in commercial work of all types, from leasing to development work, refinancing to commercial purchases including licensed premises, care homes and dental practices, asset purchases and share purchase agreements.  As a Holly Blue client, you will receive a discount of 20% on all Commercial fees.

 

PRIVATE CLIENT

(1) Conveyancing

Dallas McMillan’s experienced conveyancing team will provide you with a discount of 25% on all conveyancing instructions

 

(2) Wills and Powers of Attorney

As a Holly Blue client, Dallas McMillan will prepare a will for you free of charge. Your spouse or partner will be entitled to a discount of 25% on the cost of preparing their will too. If you wish a Power of Attorney to be prepared for you, you will also receive a discount of 25% on the standard costs of that work.

It all started when…

In her childhood, Julie’s father suffered from leukemia, his illness spanned almost ten years, throughout which he fought every single day to survive. Living with the fear that he would not live long enough to see his daughters become young adults he reminded them daily that when gone, he would send his love through butterflies.

The butterfly became a symbol of hope, despair, love and loss. Traits that teach perspective, passion, resolve and tenacity. For the team at Holly Blue, the butterfly is a reminder of all things important.

Holly Blue is a butterfly, blue or pale silver-blue wings spotted with pale ivory dots. Its colour represents loyalty, truth and integrity. Its behaviour is tactful, caring and concerned. We strive to emulate the Holly blue butterfly.

Our choice of the name holly blue is based on the above principles and because we liken the butterfly and its metamorphosis to the reality of the working world. One minute all is well and then suddenly it’s not! In the blink of an eye it can quite literally go from one extreme to the other.

When challenges fall upon the business owner the expectation is that you deal with it, and that you do so correctly and timelessly no matter how complex, how sensitive or how nonsensical you feel the issue is!

The butterfly also symbolises transformation because of its impressive process of metamorphosis. This tiny creature undergoes a massive amount of transition and unquestioningly embraces the changes of its environment. Its dance reflects the need for movement from where it is to where it needs to be… just like the employer.

The transformation of the butterfly is ironic in the chaos of our own conception. In some cases we have been in your shoes, in all cases we have come out the other side and we have done so successfully.