2014 – News Round-Up

Performance Management Seminar in association with the CIPD

30th January 2014

In association with the CIPD, we held a seminar on Performance Management at the Lansdowne Club in Mayfair on 30^th January 2014.

The event received great feedback including:

“Great reminder and very useful recommendations along the way” – Emily Steptoe, Daylesford

“Enjoyable, engaging and Gareth Kervin is a personable speaker” – Linda Lee, CloudSense.

We have published our Performance Management presentation on our website and that can be found here.

A lot of the attendees also asked about a related topic – our Absence Management Guide which can be found here.

Gareth Kervin recognised by Chambers & Partners

7th August 2014

We are very pleased to announce that for the third year running Gareth Kervin has been recognised by Chambers and Partners, the legal industry’s foremost directory, as a Leader in Employment Law.

Gareth’s achievement has come at a time of significant growth for the Firm, including certain high profile client wins. The Firm has grown its financial services client base by receiving instructions from a large systematic trading fund and the UK office of a global hedge fund. The Firm has also secured instructions from Groupon, which employs over 850 employees throughout the UK.

Join us in extending congratulations to Gareth.

Joint seminar with CIPD on Business Protection and the Hostile Employee

4th September 2014

On 2 September we held a joint seminar with CIPD on Business Protection and the Hostile Employee. The event was very well received and we received some great feedback:

“You really deliver employment law in such a practical way from the view point of the employee, the employer/HR as well as the legal view which I don’t think I’ve experienced in any other employment law session. Very informative, well rounded and just brilliant. It’s always a pleasure to come to your sessions.” – People Management Advice Specialist, Transport for London.

“Very informative and eloquently delivered. 10/10!” – Channel Support Assistant, XLN Business Services.

“Very interesting and informative about the contracts for protecting business interests” – Office Support, Comac Capital LLP.

The slides to the presentation can be found by clicking here.

On 21 January 2015 we are holding a further joint event on “Family Friendly Policies”. If you would like to attend please contact Hollie Whitworth for further details.

Kervin & Barnes’ Employment Appeal Tribunal Success

13th November 2014

Kervin & Barnes (Gareth Kervin and Lucy Truscott) recently acted for P&O Ferrymasters at the Employment Appeal Tribunal (EAT) in the company’s successful appeal against a Cardiff Employment Tribunal judgment. The EAT judgment came out last week and can be found here.

In November 2013, the Employment Tribunal found in favour of the Claimant – regarding his unfair dismissal claim. Parts of the judgment were unusual in that the Employment Judge appeared to have reached his own conclusions as regards the facts of the case rather than assess whether the company’s conclusions (after extensive internal investigations and an expert’s opinion) were reasonable in all the circumstances having regard to the ‘hypothetical reasonable employer’. The claim stemmed from a gross misconduct dismissal after alleged serious breaches of health and safety by the Claimant (which were disputed by him). The company had gone to considerable lengths to ascertain how significant damage was caused to a crane that the Claimant was working on. The accumulated evidence pointed to there being two health and safety incidents – a minor one which the Claimant reported to the company and a major one which the Claimant did not report and subsequently denied. The Claimant argued that the former, minor incident caused the significant damage but the evidence of others including an expert suggested that was not plausible.

At Tribunal the Employment Judge referenced the philosophical concept of ‘Occam’s razor’ (summarised in para. 29 of the EAT judgment, but essentially noting that a straightforward conclusion with fewer assumptions is more likely than one with more assumptions built in) in reaching a conclusion that there had been only one health and safety incident. Following the company’s appeal, conducted by Kervin & Barnes with Andrea Chute as counsel, HHJ Richardson at the EAT found that this demonstrated a “substitutionary mind-set” and therefore an incorrect approach. As the scope for the EAT to substitute its own judgment (here, for example, that of a fair dismissal) is very limited, the successful appeal will now lead on to a re-hearing of the case which has been remitted back to the Employment Tribunal.

The case is a useful reminder of what HHJ Richardson referred to as “the different roles of the Employment Tribunal and the Employment Appeal Tribunal”. He specified: “It is the task of the Employment Tribunal […] to apply section 98(4) [of the Employment Rights Act 1996].  [The Employment Judge] must apply the objective standard of the reasonable employer to all aspects of the dismissal: investigation, process, fact-finding and sanction.  [The Employment Judge] must recognise that in many, though not necessarily all, cases there may be a band or range of ways in which a reasonable employer may act.”

If you have any on-going or pending matters regarding misconduct investigations and/or dismissals then please contact our team by clicking here or telephone us on 0203 178 5360.