“Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (“being jostled into a decision”) and indeed the intellectual make-up of an employee may be relevant (see Barclay). These we refer to as special circumstances. Where special circumstances exist it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is needed to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer’s risk.”

This authority has given us “heat of the moment” resignations and dismissals. Under the strict contract law position, an employee who bellows “that’s it, I quit” at his boss and stomps out of the factory, has resigned. Perhaps his boss yells back “good!” The employee could not then, according to contract law, cool off and change his mind. Not in employment law. The special circumstances mentioned above mean that in some cases resignation can be withdrawn – our angry employee might have bellowed “that’s it, I quit”, but during his drive home, knuckles white as a grips the steering wheel in rage, he may suddenly remember his mortgage, wife, children and re-think things. So he telephones his boss, explains he lost his temper, and that he is on his way back to work. He might well be successful in showing that his employment was revived by his change of heart.

This is a sensible rule, but has never come with hard and fast time limits attached. In Kwik-Fit Wood J described a reasonable period as “relatively short, a day or two”. A recent EAT case, Willoughby v C F Capital Plc [2010] UKEAT 0503_09_1307 has helpfully confirmed:

1. the doctrine applies equally to a heat of the moment dismissal as it does to a resignation [although it would seem clear that each would require a different assessment as to what was reasonable];
2. that a 14 day delay (even with Christmas in the middle) was far too long for special circumstances to exist.

James Medhurst has helpfully tied together an analysis of this case with the ruling of Roberts v West Coast Trains Ltd [2004] EWCA Civ 900, which gives the employer a right to unilaterally reinstate following an appeal, or even perhaps without one. This does, as he says, potentially alter the balance between employer and employee, as the former could always “cure” his heat of the moment dismissal by reinstating whereas the employee is stuck with his resignation.

It should always be remembered by employers that an offer of reinstatement, even if refused, can be tactically beneficial in reducing compensation to an employee who, it can be argued at the tribunal, has failed to mitigate his loss by taking up the offer.

“I was struggling with the fact that so many black people had lost their farmland. And here I was faced with having to help a white person save their land. So, I didn’t give him the full force of what I could do. I did enough so that [he would] go back and report that I did try to help him. So I took him to a white lawyer … I figured if I take him to one of them, that his own kind would take care of him.”

Seemingly damning stuff.

As happens in the media-driven world, a storm developed almost immediately. The edited video appeared at 11.18am, and by mid-afternoon was all over the web. By the evening government officials had telephoned her demanding her resignation. She has alleged that this speed, and refusal to listen to her explanations, stemmed from the administration’s fear over the coverage they would likely receive that evening from right wing angles of the press. She later said that the under-secretary of state told her “you’re gonna have to [resign] because you’re on Glenn Beck tonight”. So she did.

But OOPS! The video of the speech had been carefully and deliberately edited. In the full speech, which came to light the next day, Ms Sherrod makes clear that she did ultimately provide all the help she could to the white farmer, and that she learned from the experience:

“But working with him made me see that it’s really about those who have versus those who don’t, you know, and they could be black, they could be white, they could be Hispanic.”

The white farmer concerned contacted CNN to say that she had, in fact, saved his farm.

So Sherrod was blameless. She had simply made a speech about her views of social justice being centred on race in the eighties, but moving to poverty based on her experiences of helping a poor farmer who was, for once, white. NAACP, the black civil rights movement to whom the speech had been addressed, said:

“she was sharing this account as part of a story of transformation and redemption. In the full video, Ms.Sherrod says she realized that the dislocation of farmers is about “haves and have nots.” “It’s not just about black people, it’s about poor people,” says Sherrod in the speech. “We have to get to the point where race exists but it doesn’t matter.”

The problem being of course, that she had already been dismissed.

Would this dismissal have been fair in the UK? The instinctive answer is that of course it would not; the law requires that:

1. a dismissing employer believes the employee to be guilty of misconduct;
2. had reasonable grounds to sustain that belief;
3. and in the circumstances carried out a reasonable investigation.

Surely point 3 should surely fail here, given that Sherrod’s version was vindicated within 24 hours?

Might the government argue however that “in the circumstances” no greater investigation was possible? The administration was about to suffer a whole evening’s media, and next day’s newspapers, slamming it for both racism and a failure to take any action. If indeed she were guilty of the alleged racism, then it could avoid a great deal of criticism by having acted quickly and decisively. The proposition I would like to put forward, for debating purposes only you understand, is that these are legitimate reasons for an employer to curtail its investigation.

Take, for example, a company which suspects one of its employees of having stolen from a major customer. That customer is furious, and the company considers that only immediate dismissal will salvage the business relationship. The employee is dismissed, and as an explicit result of that the relationship is saved, and perhaps with it the company. This trespasses into third party / SOSR dismissal territory, but surely commercial or political pressure is a relevant factor for the third prong of the test? I’d be interested to know what people think. Is there perhaps an echo of Sharon Shoesmith here?

Happily, Sherrod has now received an apology and the offer of a new government post. Read all about her here and here.

• dealt with over 900 collective actions (usually industrial action or collective redundancies);
• provided conciliation in over 85,000 employment tribunal actions – its highest ever number, and 13% more than in 2008/2009;
• received over 1 million calls to its helpline;
• dealt with over 10,000 “pre-claim” conciliations – this is where the Acas is asked by the parties to conciliate a claim before a tribunal action has been commenced.

In relation to the last figure, Acas claim that in over 70% of these cases tribunal proceedings were prevented. They quote a study which shows that getting to the stage where an ET3 is filed can already have cost a business £2,000, so the savings are substantial.

There seems to be no indication yet as to whether Acas will be facing significant cuts under the coalition’s spending plans, but it is well-placed to avoid these given it is an organisation that saves other people money. Acas chair Ed Sweeny is quoted as saying:

“We continue to deal first hand with the effects of recession and the immense strain it places on workplace relations. We are seeing signs of improvement with employers and unions taking a more pragmatic approach by working together, looking at ways to try and save jobs and avoid redundancy. This is in stark contrast to previous recessions.

Overall Acas provides excellent value – every pound of taxpayers’ money invested in it creates a return of up to £16.”

Indeed, there can be little doubt that this recession has been marked by that more “flexible” approach to reducing staff costs than the large-scale redundancy exercises of the past. Social and economic changes over the last two decades are the main contributors, but Acas has certainly had an important role to play in disseminating the alternatives to employers.

Read the Acas 2009/2010 annual report here:

http://www.acas.org.uk/index.aspx?articleid=1473

Costs were not awarded, due to a finding by the ET that the Claimant “did not act unreasonably” in bringing the claim. Lady Smith finds this conclusion perverse. This goes further than the recent line of cases – see my post last year on two authorities deprecating tribunals’ refusals to award costs against lying Claimants.

This case is rather fact sensitive, but will be grist to the mill for many Respondent representatives trying to recoup the cost of meritless or vexatious claims. Another important point comes from Lady Smith’s rejection of the notion that it is legitimate to bring a claim for unfair dismissal simply to obtain a finding that it was so – there is a declaratory power in discrimination legislation, but not in Part X of the Employment Rights Act 1996. Many many clients have told their lawyers in conference that “it’s not about the money, it’s the principle”, but this EAT judgment will strengthen that lawyer’s warning that courts and tribunals do not usually look at it that way.

A group of BA flight attendants is claiming that the removal of discounted travel from strikers discriminates indirectly against employees based in Scotland, Ireland and mainland Europe who use the scheme to commute to and from Heathrow airport. The group, called Crew Defence, is representing 75 employees who are lodging cases with an employment tribunal in Reading and plan to sue for compensation if their claim is upheld.

This is a bold claim, but it may be successful in crossing the first hurdle of showing that BA are applying a provision, criteria or practice which is applied equally but puts (for example) Scottish people at a disadvantage. It would then be for BA to show that the treatment is justified. Much will depend on the nature and context of the scheme and its removal. To use an example, if a factory in Carlisle provides a free employee bus from Kendal, can a wannabe employee in Dumfries make a complaint?

The employer is likely to agree that its practice of failing to provide a bus from Dumfries affects far more Scottish people than English, but would argue that it has a legitimate objective (attracting and retaining employees), and it is proportionate to achieve that objective by providing that one bus from Kendal. The employer might well claim, if it is small, that it can only afford the one bus and clearly that bus will either set off in England or set off in Scotland. That itself could constitute justification, but would be bolstered by a rational explanation of why Kendal was chosen in the first place.

• Purporting that a written warning was issued in 2007, when in fact you used a 2008 proforma but tippexed out the 2008, only to humiliatingly be asked to hold it up to the light in front of an employment tribunal;
• Posting how much you hate your boss on Facebook, only for him to read it and dismiss you.

Here we’re concerned with the twitter feed @gillianmckeith – after a series of spats about McKeith’s qualifications, as derided by Ben Goldacre’s book Bad Science, the feed referred to his book as “lies”. Goldacre smelled a libel and tweeted back, only for the next tweet to read:

do you really believe this is real Twitter site for the GM?

As Goldacre puts it:

Yes, replied the geeks. The Twitter account @gillianmckeith is linked to gillianmckeith.info, explained some. Then that link was deleted. Ah, explained others: only half-deleted. If you look at the “source code” for the page, the link is there, just temporarily inactivated. And that Twitter account is still linked from gillianmckeith.tv, Gillian’s YouTube page.

Read Ben Goldacre’s article here.

So again, a gentle reminder to everyone out there: there is always someone out there with a stronger sense of smell than you, and they’ll sniff you out. Oh, and a second honourable mention for the Queen of forensic IT errors, the lady who purported that a letter was written in 1999, when it had clearly been typed in Office 2007.

“We should be able to get there in this parliament.”

There is not yet a clear coalition line. David Cameron’s pre-election promise to look at the issue was criticised as a rather last-minute sop to a community many of which feel distrust towards the Conservative party. Pink News quotes gay Tory MP Nick Herbert as saying:

“It’s not something we’ve got immediate plans to change, but we recognise that there are views that say that the name is important.”

So changes may well be towards the end of this parliament, or indeed a promise for the next one.

Usefully Employed has produced a web-based version of the table, which will be amended to include links explaining what the changes mean to employers, employees, and practitioners.

Visit the page here:

http://blog.usefullyemployed.co.uk/equality-act-2010/table-of-changes/

The Acas table, useful to print out as a ready reckoner, can be found here as a pdf:

http://www.acas.org.uk/CHttpHandler.ashx?id=2840&p=0

In fact, despite neither party having a crystal ball as to what would really happen, it is now accepted that the NMW’s protection vastly outweighs its effect on unemployment figures. A 2006 study by the London School of Economics found that:

The consensus is that the minimum wage has not cost jobs, either in the aggregate economy or in the low wage industries and occupations.

..despite this outcome being contrary to the predictions of conventional economic theory. Read a summary of the study here:

http://cep.lse.ac.uk/pubs/download/CP217.pdf

David Cameron, and the coalition government, are cautious converts to the NMW, and have accepted the proposals of the Low Pay Commission that rates be increased as follows, effective 1st October 2010:

New National Minimum Wage rates

• Adult rate: £5.93 (up from £5.80)
• Development rate: £4.92 (up from £4.83)
• 16-17 year old rate: £3.64 (up from £3.57)
• Apprenticeship rate: £2.50

Note that the Adult rate now applies from age 21 instead of 22. The Development rate thus applies to 18, 19 and twenty-year-olds. The apprenticeship rate is a new development – a 37 hour week would now pay £92.50. There was already a de facto minimum of £95 per week, but the introduction of an hourly rate is designed to stop abuses of apprentices by having them work excessive hours.

“Work” means employment, contract work, a position as a partner, a position as a member of an LLP, a pupillage or tenancy, being taken as a devil, membership of a stable, an appointment to a personal or public office, or the provision of an employment service; and the references in subsection (1) to offering a person work are, in relation to contract work, to be read as references to allowing a person to do the work.

This is, apparently, the terminology used for the Scottish equivalent of pupil barristers. But you can bet there’ll be a fair bit of head scratching by lawyers and HR staff when reading this section. A stable, if you were wondering, is a Scottish chambers, like this one. Apologies for this article to Usefully Employed readers North of the border.