Yesterday I wrote to Dominic Raab MP about the current debate on ‘no fault’ dismissals. I quoted a paper he wrote late last year where he made some pretty suprising claims about the current state of the law on dismissals for poor performance.
I was a bit surprised late last night to receive a reply from him. Here it is:
Darren
Thanks for your email.
We will have to agree to differ on this. I have had an enormous amount of feedback from employers based on practical experience that directly rebuts your legal analysis. Whatever the law books may or may not say in theory, employers are being taken for a ride in practice.
Best wishes, Dominic
Well as an argument, that sounds pretty familiar. Here’s my reply.
Dominic
I really appreciate your taking the time to reply to my email so quickly. I didn’t expect us to agree on what the law of unfair dismissal should be. However I am surprised that we can’t even agree about what the law currently is.
The analysis I put forward is not some theoretical model that I’ve extracted from a text book. Employment law is a practical subject, and I have many years of experience giving practical advice to real employers about how they can manage people within the law. I described the law correctly and if any Tribunal applied a different standard then I would expect that to be challenged on appeal. It is noticeable, however, that this is not an area that generates much case law. This is good evidence, I think, that the Tribunals are applying the accepted standards that have been a settled part of the law for decades.
The ‘feedback’ that you have had from employers is not a sound basis for a change in the law. The reasons for this should be obvious. First of all, there are two sides to every story and I note that your evidence comes from the employer’s side only. Secondly, I too have spoken to employers who feel they have been ‘taken for a ride’ but the case has rarely reached the Employment Tribunal. They may have received over-cautious legal advice, or poor internal advice. Line managers often fail to deal with poor performance because they feel awkward and embarrassed about bringing the subject up. Could it be that when senior managers later want to know why an issue was never addressed, the ‘law’ is a convenient scapegoat? Obviously if you have actual Tribunal decisions to back up your argument then that is a different matter. These are public documents. If you give the appropriate reference, we can all read them and see if there is a real problem here.
I confess to finding it frustrating that the critique of unfair dismissal law used by those promoting the ‘Beecroft’ proposals is so very general and non-specific. We are told that the law is too onerous, but never told just what it is about the law that is unreasonable. Is it the need to give the employee a warning before dismissal? Is it the frustration of having to allow an employee a reasonable chance to improve? I wrote to you because you made specific claims about what the law currently says and gave an employment law text-book as your source. It is a shame that when challenged on the specifics, you fall back on the familiar, generalised, appeal to anecdote that tends to characterise the debate on this topic. I think we are entitled to a more rigorous approach from those who are proposing a significant change in the current law.
All the same, I appreciate your reply.
Kind Regards
Darren
I suspect that the correspondence ends here – although I’ll post any further reply that i get.
What do we learn from this? There is still work to be done in making sure that employers understand how employment law really works. My view remains that unfair dismissal law needs no major reform. Instead, employers need to understand that behaving reasonably does not mean running away from awkward conversations, or putting up with a job being done badly. Employers are entitled to insist that a job is done well. However they are not entitled to dismiss employees on a whim without giving them a fair opportunity to demonstrate that they can work to the required standard. Those promoting the ‘Beecroft’ agenda would probably deny that that is the result that they are after – but beneath the generalisations and the anecdote, we should be clear that that is what they are proposing.
A Range of Reasonable Responses 
Darren,
I read your exchange with Dominic Raab with some interest, as I am currently reading law at Cambridge as a mature student, and previously ran a long-established family business in the beleaguered printing industry. For five years I was directly responsible for all employment issues for 80 staff, which sadly involved a significant number of dismissals, mostly for redundancy but also on other grounds.
You are absolutely right to say that managers and employers struggle to have the difficult conversations that are needed, and in particular at the time they are needed, not after the fact. This was certainly the situation when I took over – there were several ‘known problem people’ but nothing on anyone’s record to show for it. I set about changing this, which involved dealing with these problems and I had a lot of difficult conversations in the process. Nevertheless I can see where Raab and the employers he refers to are coming from.
I don’t think no fault dismissal is the answer – it is far too blunt an instrument and eminently liable to be misused – but I do understand the frustration with the law that gives rise to such suggestions, and it seems to me that you are perhaps arguing at cross-purposes to some extent (not helped by the brevity of his reply). I very much doubt that the requirement to treat employees fairly, give them a warning or a reasonable opportunity to improve their performance is what is really being objected to. I suspect the point of contention arises over what is meant by ‘poor performance’, a phrase which covers a multitude of sins.
You of course have a far broader background in employment than I do, but in my experience there is a wide range of real world problem behaviour that falls between the stools of capability and conduct. This I think finds expression in the CPS proposals in such colloquial terms as ‘coasting’, ‘uncommitted’ and ‘not pulling their weight’ but can be very difficult to pin down in practice. A job can be ‘done badly’ in many ways while ostensibly meeting basic standards of conduct and capability, and I have personally had to deal with a number of people whose poor attitude, dysfunctional behaviour, behind-the-scenes troublemaking and undermining of management and colleagues made their employment undesirable, yet whose behaviour did not amount to anything obviously identifiable as ‘poor conduct’ or ‘poor performance’. Such people have genuine repercussions for a business and other staff affected by them, yet they can be very difficult to deal with without a degree of micro-management that risks accusations of inconsistent treatment and victimisation.
I spent a lot of time (and money) over the years on the phone to the employment partner and others at the solicitors I worked closely with (including Laurie Anstis of Work/Life/Law fame), trying to deal with such problem staff professionally within the constraints of the law and found it heavily stacked against me. Even where I was able to identify and address a specific incident of poor conduct with such an individual, the limited nature of the disciplinary sanctions available coupled with the very short time that warnings are live meant that the most problematic people were rarely foolish enough to permit themselves to be dealt with in this way, and certainly never to the point of dismissal. The end result is that a problem employee who is shrewd (and well advised) can be virtually untouchable provided they can perform their role despite disrupting all around them. In addition such people know they can cause a lot of trouble for their employers with malicious and spurious tribunal claims at little or no cost to themselves. This happened to me on two occasions – neither baseless case ultimately went to tribunal, and so they don’t show up in the statistics or case law, but they wasted a lot of scarce resources all the same.
Inevitably, well-intentioned legislation which has been put in place to protect genuine victims of discrimination and unfair dismissal is abused by a small minority of problem individuals. Every small employer knows who these people are within their own businesses, and I would imagine in most cases such people end up being dealt with under the guise of redundancy as the only ‘safe’ option, which perversely involves paying off your worst employees, at the expense of good staff, on the rationale that at least it’s better to pay once to get rid of them than continue to pay them to perpetuate the situation.
I suspect that this is also where the impetus comes from for a return to the two year qualifying period before being able to bring a claim for unfair dismissal. I very much doubt that ‘job creation’ is the real reason for the proposal – I would guess that this is an attempt to facilitate the management of problem staff, who are usually bright enough to keep their heads down during their first year. On more than one occasion, acting on unequivocal legal advice, I have dismissed a person just prior to the end of their first year – not ‘on a whim’, far from it – but because I was legitimately concerned that they would become an unmanageable problem once their employment protection kicked in. Even then in one case I still got hit with a totally fictitious health & safety ‘whistleblowing’ tribunal claim (no doubt looking for a cash settlement) that I spent many months fighting until the claim was finally dropped – needless to say this only vindicated my concerns about the person in question.
This is far from an ideal approach to solving such problems, of course, but I think it reflects the reality of the situation for many smaller employers, and the lack of any happy medium between no employment protection at all during the first year and the degree of protection afforded once the qualifying period is over. Perhaps my experience is not representative, or perhaps I was poorly advised (don’t tell Laurie!), but I’d be surprised. I’m sure you must have come across and advised your own clients on such issues numerous times and so I’d be interested to know your thoughts on whether and how the existing law enables employers to deal with more subjective but no less real problems of attitude and behaviour that do not necessarily amount to ‘poor conduct’, as I suspect this is what lies behind many of the criticisms of unfair dismissal legislation as it stands.
Kind regards,
Richard Wayman
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