Is it a good thing to give an employer the right to treat an employee unfairly?

27th October 2011

Is it a good thing to give an employer the right to treat an employee unfairly?

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There has been a lot of noise in the media and the blogosphere about the leaked report written by venture capitalist Adrian Beecroft, which has been reported as recommending the abolition of unfair dismissal laws. We have seen two extracts purporting to be from that report. Working on the principle that what we have seen is from the draft document, the report suggests a new ground of termination: Compensated No Fault Dismissal, which would allow employers to sack unproductive staff with a payment of notice and an amount equivalent to the basic redundancy pay. In other words, this would allow employers to state I can’t find any reason to sack you, so here’s your cheque and goodbye.

As you may imagine, a lot has been written about the assumption that employment law hinders employment and also on the practicalities of disposing of this legislation. For example we like this post:

See also an article in the Guardian by Anya Palmer yesterday,

We have already written this year about the practical impact of the proposal to increase the length of service requirement for unfair dismissal. Those comments are equally applicable to the proposed abolition of the unfair dismissal legislation. Instead of writing about the practicalities, we decided to ask ourselves a rather more fundamental question about what the abolition of this legislation, were it to happen, would say about our society.

In France, when discussing the difference between the UK and France, one often hears that the French are Cartesian and the English pragmatic. I love pragmatism, but a bit of Cartesian analysis (i.e. a reflection on the philosophy behind a system) is sometimes a good reality check.

In the 19th and 20th centuries two models evolved to counter the exploitation of the working classes by capitalists: the communist revolution and the bourgeois revolution with its habeas corpus in Britain, the Bill of Rights in the US and declaration of human rights in France. During this period came the development of health and safety and more latterly employment legislation.

When you study French employment law, the starting point is a quote from a 19th century French priest and lawyer, Jean-Baptiste Henri Lacordaire: “between the weak and the strong, the rich and the poor it is freedom that oppresses and the law that liberates.”

In essence, in employment law terms, in an employment relationship, the employer’s power needs to be limited by the law.

This all sounds very archaic now but the underlying concept still has some truth in employment law today, in discussions around the imbalance of bargaining powers between an employee and an employer and the application of the rules of natural justice. The latter directly relates to the process used to dismiss an employee. The right to a fair hearing is fundamental to a fair process.

Unfair dismissal legislation, which appeared in the UK in the early 70s’, helps to ensure exactly that. The procedure, which will only apply after a quasi one year and soon to be two years’ statutory probationary period, can be summarised as follows:

Conduct dismissal: no one should be dismissed before being given the right to state their case and for their case to be investigated. For example, If you are sacked because your employer believes you have taken money out of the till you should be able to say I did not do it, I was off sick on the day money was taken.

Redundancy dismissal: no one should be dismissed without having their say on why their job has disappeared, why they are dismissed instead of one of their colleagues and without being offered suitable alternative employment elsewhere in the organisation if it exists.

Performance dismissal: no one should be dismissed without understanding their performance problems and being given time to improve with targets and support from the organisation.

If Mr Beecroft’s proposal is accepted, these fundamental elements of dismissal will presumably disappear. The extract we have seen from the executive summary of Mr Beecroft’s report says:

“The downside of the proposal is that some people would be dismissed simply because their employer did not like them. While this is sad I believe it is a price worth paying for all the benefits that would result from the change.”

Do we really want to live in a society that believes these rights should be abolished? We don’t and we also don’t think it is a ‘price worth paying’ and will continue to believe this until someone comes up with hard evidence to show that the ‘benefits’ are not just purely speculative.

The Government should remember that it is not there to satisfy the needs of its party funders but to try to satisfy the needs of its electorate, the vast majority of which will be employees.

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