Gagging clauses

One might be forgiven for inferring from recent press reports that clauses forbidding dismissed NHS employees from disclosing concerns about patient safety are legally effective. However, it is arguable that these kind of clauses don’t work, provided that the dismissed employee can bring the information disclosed within the ambit of the Public Interest Disclosure Act. That’s because the Employment Rights Act contains a provision that makes any “gagging” clause void to the extent that it purports to exclude or limit an employee’s statutory rights, which would extend to the protection for whistleblowers. And it is clear from recent case law that ex-employees are protected in the same way as those still in work.

A good year for Lord Sugar

Ignoring the pedantic objection that contestants on “The Apprentice” are not really employees, Alan Sugar’s finger-pointing firing technique hardly represents the model of best employment practice. However, his no-nonsense approach has been given a boost by a number of recent cases which have highlighted the risks to employers of failing to communicate a decision to dismiss clearly, and no one could accuse him of that.

He has also managed to see off a constructive dismissal claim by one of the winners of the show, Stella English, who claimed she had been treated as an “over-paid lackey”. Seeing the result as “a victory for the law against the “claim culture” he concluded “I’m afraid she underestimated me and her reputation is in now tatters.”

The legacy of Baroness Thatcher

The death of Margaret Thatcher in April has provoked many column inches on her legacy to the country as a whole, but less reflection on what she did for our employment legislation. There is no doubt that the balloting and other measures that restricted the immunities of trade unions endorsing industrial action, which were made under her leadership, have become a permanent feature of our legal landscape. There seems little appetite on either end of the political spectrum to go back to the position we had in the 70s.

On the other hand our main parties remain divided on the appropriate qualifying period for unfair dismissal. The increases made by Thatcher’s government were largely reversed by Tony Blair’s Labour government, only to be reinstated by the Coalition with effect from April last year.

Litigation culture: perception and reality

Much of the ideological drive behind the current crop of changes to the tribunal system stems from the conviction that we have too many claims going through the employment tribunal system, a view clearly shared by Lord Sugar (see second news item). But the official statics show a steady decline in the number of individual claims being brought. The latest quarterly statistics (for the last quarter of 2012) show a 24 per cent decline from the equivalent quarter in the previous year, though the overall caseload carried by employment tribunals continues to climb slightly.