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NiLegal
Discrimination & Employment Rights
High Profile or High Risk
In the field of Employment Law, the stakes keep getting higher and the goalposts keep
moving.
Wise companies learn from the pain of others to avoid going through the pain themselves.
Can they learn anything from high profile cases?
Solicitor Michael Morse thinks they can (if they listen).
Switalski Case
the means. As companies count the cost of the not a grievance. Now it can be. Managers must
On first glance, this recent case looks so different
recession, the same scenario plays itself out daily be alert and receptive.
from ‘normal’ that it provides few lessons. But
across the UK. Companies are encouraged to think about how
consider the following as you read about it:
Finally there is some protection specific to a to handle bullying and harassment. Greater
Are there high earners in your company?
particular employee. In this case it was emphasis has been put on informal resolution.
Could issues arise?
gender/motherhood. It could as easily be Yet a company will need to show it has given
Would your company handle them better?
something else: race, age, homosexuality. Any serious thought to serious issues.
Do you appreciate the risk?
would suffice to create a victim at law. Use of independent mediators is encouraged.
In truth, Gill Switalski represents a large This may avoid the costly and destructive
Gill Switalski was a 51 year old mother of two.
number of senior employees whose managers adversarial approach of conventional litigation.
She juggled career and family by working from
treat them badly. Her payout exceeds others but, Managers may also need to be re-trained. They
home one day a week. This was important as her
in terms of risk control, that is frankly irrelevant. are at the forefront of the changes and a
children were disabled. She was on £140,000 a
Even 10% of her award would be totally Switalski-type boss runs completely contrary to
year and life was good.
devastating to any ‘normal’ company. the entire profile of the Code. A company that
Then the company went through a merger.
fails to recognise this will get no sympathy.
She got a new line manager and things started to
The bottom line is, whether old rules or new
go downhill. According to her, the new line
It’s Personal Code, a renegade line manager can lose you the
manager micromanaged and pressured her over
Companies would do well to remember:
case (and a lot of money).
her arrangements. He challenged and pushed her
They should also be very cautious in all formal
over everything she did.
It’s not only employees who are protected dealings with agents.
She felt ‘undermined, undervalued, bullied and
against discrimination. A partner can make the
marginalised.’ (How many disgruntled managers
same claims.
Conclusion
share those feelings?) She fell ill and eventually
Individuals within the company can be liable
brought proceedings for discrimination and
along with the company itself. Line managers
High profile cases do tell us something:
harassment. She pointed to a colleague who
may face high value personal Judgments.
escaped this mistreatment - who happened to be The same principles apply to us
a man.
Grievance Code of Practice
The factual differences that matter are small
After a long legal battle, Mrs Switalski has Gill Switalski clearly felt aggrieved by her The financial risks are huge
finally won. treatment. Until April of 2009, there were HR Managers may exaggerate their abilities
The company, line manager and Head of HR mandatory grievance rules. These caused great
have a Judgment against them. confusion however, and have been replaced by a Early legal advice is critical. Gill Switalski’s HR
Her payout may dwarf the previous record – at new ACAS Code. Manager – faced with a £13 million Judgment -
£13 million! At its heart is the idea that the rules were might wistfully recall a wise old proverb:
sensible but more flexibility was called for. The
Lessons
Code is about ‘guidance’ and ‘best practice’. The man who represents himself has a fool
It is easy to focus on the exceptional aspects of
Companies must harbour no illusions however. for a client.
this case. What really matters however, are its
Fail to follow it and a Tribunal may:
ordinary issues. These are surprisingly mundane –
Decide against you on the merits
and reappear everywhere.
Adjust compensation by 25%
First we have high earnings. £140k is clearly a
very good salary but what if we reduce it by half.
What are some of the changes to general
How many employees around the country now
grievance procedures ?
come into focus?
Next we have a post-merger culture, with an
There is no longer a requirement for a
Michael Morse
aggressive line manager. To him the end justified
grievance to be in writing. This is important.
Tel: 0113 225 8811
Under the old rules an unwritten complaint was
E Mail: mmorse@godloves.co.uk
16
•
NURSERY INDUSTRY
•
SEPTEMBER 2009
•
www.nursery-industry.co.uk
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