Friday, 16 April 2010

Brighton Benefit Cuts & UNISON Picket anti-Union Firm

Peninsula Business Services and 'How to Dismiss Troublemakers'

Early this morning about 20 protestors, from UNISON and Brighton Benefit Cuts, picketed a seminar held by a nasty little firm, Peninsula Business Services. I had received an invite, in my capacity of Director of Brighton Unemployed Centre, inviting me to the seminar. ‘How to Dismiss Troublemakers’ ‘Say no to holiday requests’ ‘Manage under-performing staff’ ‘Avoid (i.e. get round) anti-discrimination laws‘Being threatened with discrimination’ (most people find discrimination threatening!) etc. Twice the de Vere Grand Hotel was invaded by the protestors and this included the seminar room itself! As the lecturer said, this kind of thing has never happened before!

I should explain that in my spare time between campaigns and helping run Brighton & Hove Unemployed Workers Centre, my main field of work is in employment law. It primarily involves representing workers in Employment Tribunals and occasionally in the Employment Appeal Tribunal (the equivalent of the High Court). For those who are interested, my biggest case is Lucas v Chichester Diocesan Housing Association, a Whistleblowing case, which is listed by the charity Public Concern at Law as one of the 30 most important cases decided on Whistleblowing.

It is in this capacity that I have some experience of PBS. PBS represent small businesses, the type that can’t afford to pay solicitors. They are the natural home of lousy pay and bad conditions. They constitute a cross-section of the base of the Tory Party (& increasingly New Labour!). They are Disgusted of Tunbridge Wells and their newspaper is the Daily ‘Hate’ Mail, with the more educated of them graduating to the Daily Telegraph.

I have to confess that I quite like PBS, if only for the fact that their malevolence is outweighed by their incompetence. The 2 cases in which I have won most money for clients both involved PBS. In the first the firm involved didn’t have representation at employment tribunal and PBS submitted an appeal to the EAT. They needn’t have bothered since Judge Peter Clarke refused to let it past the sift stage. In the second, a case of constructive dismissal, they managed to snatch defeat out of the jaws of victory. Instead of arguing that the dismissal, despite being a fundamental breach of contract, was nonetheless fair, they concentrated on mitigation of loss, despite the burden of proof being on them.

Peninsula are the biggest employment consultancy agency in Britain, boasting of nearly 30,000 customers. PBS have a simple modus operandi. It is to put the frighteners on their captive audience. Everything is a threat, especially Europe with its anti-discrimination legislation! If an employer speaks out of place s/he is likely to be sued. Discrimination claims are the new French Terror – instead of the guillotine, the petit-bourgeois face crippling damages from every lesbian with a chip on her shoulder. And woe betide if you make a careless remark to someone Black!

Employment is therefore a minefield, with predatory unions, troublemakers and shirkers. Our lecturer was one Peter Titchener, who describes himself as a ‘marketing consultant’. Whilst I concede that his presentation was slick, his grasp on the law seemed somewhat tenuous. Two things seemed to irk him. One the recent decision of the European Court of Justice Pereda v Madrid Movilidad SA that workers who fall sick during their holidays can reschedule their holidays. It was yet another case of European madness. Something his audience of course warmed to. And then the idea that an employer could be held liable under what is known as vicarious liability for an act of discrimination, in fact racial harassment, by a third party such as a client or customer. Before the House of Lords overruled it, what was known as the Bernard Manning case, Burton and anor v De Vere Hotels Ltd 1997 ICR 1, [it’s quite coincidental that the seminar was also held in a De Vere Hotel!] where Black waitresses were abused by the audience, ruled that in certain circumstances employers would be liable for racism experienced by staff where it was within their powers to prevent such or they should have known of the likelihood of such discrimination. This has now been reinserted via European legislation and the new Equalities Act.

The invitation letter I received is almost a caricature of the stereotypical Daily Mail reader’s phobias – troublemakers, sickies, holidays, pregnant employees. I asked just one question, which was, in view of the never ending litany of employment tribunal horror stories (backed up by slides of the Daily Mail or Telegraph!) appropriate. How many cases at tribunals are won by the employer? Simple you might think, as the Tribunal Service issues annual statistics on such things. After a little hesitation Titchener came back with ‘the overwhelming majority’ In fact less than half of unfair dismissal cases are won. In constructive dismissal (where the employee resigns because of the employer’s behaviour) it is one-third. In discrimination cases, always the bugbear of bigots, it is less than 20%. But why let facts get in way of a few profitable horror stories? After all, any mug who believes the Daily Mail’s daily diet of fear ridden drivel is equally likely to be frightened into parting with their hard-earned, over-taxed cash!

Tony Greenstein

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