Human Law Mediation Blog: Recent Posts

Redundancy Advice Service  -Legal Advice and Support Services for SMEs

Making staff redundant is never easy, get it wrong however and it could cost your
business significant sums, in management time and compensation payouts.

Many businesses only take advice when their redundancy programme goes wrong or
when an employee disputes the grounds under which they are being made redundant.

Taking specialist legal advice and getting support with the redundancy process means
you can avoid costly payouts and the time draining process of trying to settle a dispute.

Our Redundancy Advice Service is provided by senior solicitor and qualified mediator,
Justin Patten. Justin will work with you to make sure your redundancy process is
objective, fair and non-discriminatory whilst also making sure the interests of your
business are taken fully into account.

Understanding your need to budget we’ve put together fixed fee redundancy support
services for SMEs which guarantee you will pay no more than the fee quoted below.

Getting the right advice, at the right time will save you time, money and stress.

Fixed Fee Redundancy Service

Mini Fixed Fee Redundancy Service

Suitable for small businesses making 1 or 2 members of staff redundant and spending
the minimum time

What’s included?
· Total 2 hour telephone consultation to understand the position and objectives of
your business and to advise on the law
· Advice and coaching on how to conduct meetings with employees
· Checking letters and other communications to staff, getting the tone and
message right, avoiding ambiguity and briefing managers on how to answer any
questions.
· Practical tips to highlight legal flashpoints

Price - £495 plus VAT

Fixed Fee Redundancy Service- Suitable for businesses making 1 or 2 members of staff redundant
What’s included?

· 1 hour consultation to understand the position and objectives of your business
· Development of a detailed redundancy action plan which we support you to
implement
· Advice and coaching on how to conduct meetings with employees
· Time with you to develop an appropriate scoring system for determining who will
be made redundant
· Preparing letters and other communications to staff, getting the tone and
message right, avoiding ambiguity and briefing managers on how to answer any
questions.
· Practical tips to highlight legal flashpoints
· Advice on redundancy pay calculations
· Up to 2 hours’ telephone advice on your legal responsibilities
Price - £1,250 plus VAT
Call Justin Patten of Human Law Mediation on 0844 800 3249 to discuss your
requirements or email Justin@human-law.co.uk.

Fixed Fee Managed Redundancy Service - Suitable for businesses making 3 -20 members of staff redundant on one or multiple
sites

What’s included?
· 1 hour consultation to understand the position and objectives of your business
· Development of a detailed redundancy action plan which we support you to
implement
· Advice and coaching on how to conduct meetings with employees
· Time with you to develop an appropriate scoring system for determining who will
be made redundant
· A comprehensive set of personalised letters to employees and preparation and
advice on other communications to staff
· Practical tips to highlight legal flashpoints
· Advice on redundancy pay calculations
· Up to 2 hours’ telephone advice on your legal responsibilities
PLUS
· A comprehensive guide for managers on handling redundancies
· Attendance and hands-on support at staff meetings
· Advice on using mediation within the redundancy process
· Up to 2 hours mediation meetings and preparation
· Detailed advice on consultation, the appeal process and your responsibilities
under law

Price - £4,250 plus VAT

Call Justin Patten of Human Law Mediation on 0844 800 3249 to discuss your
requirements or email Justin@human-law.co.uk.

This is a dated article on Personnel Today, but illustrates some of the pressures and the benefits of implementing an internal mediation scheme. It is worth looking at again to see some of the benefits of mediating.  

Justin Patten, Solicitor

New research for the Observer suggests large companies are at last making an effort to understand their employees and 'engage' with them.

Large companies claim that they are doing more than ever before to listen to their staff and improve relationships. "Employee engagement" – the jargon for firms' efforts to communicate and build good relations with their workforces – is a key topic in management circles.

Since 2006, companies have had a legal duty to "have regard to the interests of employees" and to report on their interactions with staff each year in their accounts.

This is all very good, ethical and fits into my mindset but some realitties worth pointing out.

1 The primary objective of the organisation is the bottom line. The only language that will have an impact on management is does employee engagement actually deliver results. And organisations are not really that interested still. Nita Clarke, co-author of government-commissioned report Engaging for Success, says: "It's amazing how little attention the investment community pays to the fact that employee engagement has a real impact on medium- and long-term company performance." A recession makes that message more difficult to communicate as the firm has more on its plate than some management fad term. Sometimes they have to worry about redundancy consultancy.

2 As much as we can advise our clients, it pays to have good ethical procedures, correct engagement, great culture, blah, blah, most actually only change once threre is a crisis. Sometimes it is an Employment Tribunal claim, members of staff leaving that creates a problem which leads to meaningful change.  

3. Talent is largely wasted. Global employee surveys conducted by the consulting firm Towers Watson regularly find that just 20% of workers are fully engaged in their work. That is, 80% are giving less than they could. Fom my experience, nothing that radical there. This is the way things have always been.

4 A lot of so called  Employee Engagement is cosmetic. As the Observer piece pointed out,  dutifully carrying out employee surveys or asking people for ideas for new products and then not following up is a recipe for cynicism and disaffection, not engagement. Consultation exercises, newsletters and intranets may look good listed in annual reports, but they don't in themselves change people's attitudes or behaviour. Some of the most depressing organisations I have worked with have lots of these products and services.

5 Mediation and Dispute Resolution Procedures help and can help a lot, but are no panacea.  

6 The recession creates short pessimissm for Employee Engagement but long term positive change. Employee engagement is the way forward but not necessarily in the way many organisations are doing it now. As the late Delorese Ambrose observed in "Healing the Downsized Organisation "We can hope that phoenixlike, out of the ashes of these paradoxes and seeming chaos, there will emerge a redefinition of our work and the relationships that support it." Amen. 

Justin Patten, Mediator

This is a flavour of some of the article and possibly sensationalist reports which you will see in the media.

The Express writes "Half a million public sector jobs in Britain could be slashed without any impact on services because two-thirds of staff time is wasted, research reveals.

Minute-by-minute studies of working patterns show that staff productivity is 30 per cent less than in the private sector.

Results indicate that almost 70 per cent of the working day of junior staff in local government is “lost” while the level of “active” management of staff is extremely low, averaging just three per cent each day.

Managers and supervisors in local government were found to spend less than 15 minutes a day engaged in “active” management compared with 25 minutes in the private sector.

The study of 173 local government offices reveals that if efficiency rates were to match those in the private sector, the same work at a 30,000-person county council could be done by just 22,000.

This equates to more than 500,000 workers across the UK’s 410 local authorities.

Campaigners last night said the results were “staggering” and provided further evidence that Britain’s bloated public sector is a multi-billion-pound drain on taxpayers.

Paul Weekes, of management consultants Knox D’Arcy, who carried out the study, said: “Staff, in the UK private sector, are productive on average 44 per cent of the time.

“While this is pretty low compared with the better performing countries or the best UK businesses, it is still much higher than the 32 per cent we observed in local government.

“Put simply, by matching average private sector staff utilisation levels, local government could increase its productivity by roughly a third.

“This sort of dramatic rise would help offset significantly the cuts that are on the agenda as part of the Government’s austerity package.”

My observation is that these reports are quite sensationalist and if acted upon, downright dangerous. Managing in these times will require strong purpose and sensitivity.

It is true that there are issues about public sector workers lacking productivity, but the danger is that that the morale of public sectors will be further reduced and this will have an added impact on productivity. Effectively the negative cycle continues.  

Some principles for management(and tax papyers) to consider are:

1 Survivors of downsizing often suffer as much as those who are laid off.

2 The managers of downsizing, like the employee survivors also suffer. Their supposedly privileged position is compounded by the dilemma of their role - axe wielding warrior or caring leader?

3. The downsized organisation suffers if survivors are not managed effectively. Healing organisations to be downsized takes careful planning for survivors wellbeing. It cannot be an afterthought.

Slash and burn media reports do not help.   

Justin Patten, Principal at Human Law Mediation 

Employment lawyers and human resource consultants in their quest for raised profile like to talk about the new legislation and how this is going to change the way we work. All well and good.

One of the issues which I come across in my capacity as employment lawyer and mediator is the pre-determined sacking.

Essentially an organisation embarks the dismissal of someone, frequently though not exclusively by means of redundancy.

It is done via the guise of legal compliance, but the sad fact is that the process is a sham.

I have come across so many of them; What are some of their hallmarks?

1. There is an underlying motive of resentment from a manager/management against the employee. This gives the motive for the sacking.

2. Often a catalyst is a "new event" which bears no relationship to the "official" decision to sack someone. This can be a new manager coming in and wanting to get staff out/just simply a desire to change the firm and pursue a new direction.

3. The person who has chosen to sack often has psychological issues such as deep seated sense of inadequacy or subconscious need to create conflict.

4. The consultancy process (if the sacking is done via redundancy)does not have commitment to the truth within it. It is about posturing with the company emphasising respect for the individual, but not really doing it.

5. The victim "knows" whether he or she has been "had." He or she are just trying to acquire the evidence to prove the truth.

6. More often than not, the company is bullish and at times complacent. When challenged, the company will present a picture of "Who do you think you are challenging the legality of what we are doing?"  

Justin Patten, Employment Lawyer    

A lot of work I have done as lawyer and mediator turns on the words "Constructive Dismissal."

Constructive dismissal is when an employee resigns in response to a significant and fundamental breach of their contract of employment by their employer. 

To amount to constructive dismissal, the breach (which could stem from a single event or a number of them) must be a  very serious one.

That is, it must be a fundamental breach of contract .

Historically lawyers are reluctant to allege constructive dismissal as the onus shifts on the employee making the allegation(s).

Said against that, at least the employee has a measure of control of the case by making the allegation. He or she can make the running in the case. 

In addition, provided the empoyer has made significant breaches of the employment relationship, this is something an employee lawyer should be comfortable taking further forward.

Is there a way to swing the evidence in favour of the employee?

There are no silver bullets in most employment cases.

Some tactics which I recommend are simply to keep as much dialogue going with the employer even when the relationship is faltering.

This is because if there is an agenda to get the employee out, the chances that the employer will make some kind of error, which will give ammunition for the negotiations which will unfold later, when the word "compensation" is discussed.

The evidence acquired can paint a picture and enhance the prospects of successfully alleging constructive dismissal.

Justin Patten, Employment Solicitor 

Having worked fairly significantly with the public sector as a mediator, a lawyer and a trainer it seems increasingly clear to me that despite the best intentions, management is just simply not equipped to deal with the forthcoming cull.

No matter how you dress this up , the public sector will be facing real change and there will be blood on the streets.

Against such a background, where do we get our inspiration? What do we do? Is this only role of the HR advisor/Head of Department mitigation of hell?

The hurdles facing HR in the public sector are overwhelming.

1 The Public Sector is facing a fundamental question of identity as to what it stands for.

2 The Piublic Sector is facing the challenge of manaing people who will be sacked and the management of survivors.

3 The Public Sector is having a fundamental question of competence. Does it have the self belief to raise itself to the challenge?

4 The Public Sector faces a fundamental management skills deficit. Recently I atttended a Conference and I was struck with the lack of practical management skills the public sector has for dealing with the forthcoming cull. There was a lot of (commendable)emphasis on buzz words, but little tools for providing solutions.

5 The Public Sector is politicised which acts as an additional downer on morale. OK, it has always been poliiticised, but morale is absolutely critical in these times.Do you think Labour is going to hold back in criticising any public sector reforms?

Public Sector needs appropriate training and support, but to set the ball rolling they can start reading up on some of the better 1990s recession type literature.

The 1990s represents a direct parrallel for the Public Sector leadership as this was the first occasion that organisational man was devastated.  

A good place to start is the work of the deceased, Delorese Ambrose.  

As one review observes on the Amazon site, " Ambrose's prescription for restructured organizations includes lists of concrete, practical activities to effect positive internal change. On the other hand, consultant Ambrose by no means gets immersed in all the details;  An even more productive addition to this already radical business book is the inclusion of real-life cases and employees become her benchmarks for evaluating workable ideas, along with a few of those institutions' survivors who, in their stories, become role models for change."

Justin Patten, Employment Trainer.  

Charles Wynn-Evans has produced a good piece for the CIPD(12th August edition of People Management) about the importance of appopriate severence terms when dealiong with the departure of senior executives.

From my perspective whether you are the employer attempting to fire someone, or the employee clinging to job or trying to negotiate, law is just one dynamic of the discusssion. In other words, the contract wording and the legal intrepretation of conduct is just one factor.

What are the factors which can swing the negotiation in your favour?

1 The appetite of the parties to achieve the best negotiation figure.

2 The ability to play on the emotions of the other side. 

3 The ability of the adviser and the party to be aligned. If the lawyer and the client do not have total mutual respect and support, the negotaition will falter. Does the adviser fundamentally understand what the client really wants?

4 The ability of the lawyer to coach the client, knowing when to support the client and knowing when to let go.

5 The ability of the adviser to communicate effectively to the other side and the client. Every form of interaction beit with the client or the other side is an opportunity to progress the case. 

6 The ability of the lawyer and the client to make sensible use of concessions or supposed weaknesses in the case. Sometimes by drawing attention to an apprent weakness in your case, you convey strength of purpose and lack of fear.

These are just some of the dynmanics which help.

Justin Patten, Employment Solicitor 

The Law Society has released a practice note for solicitors giving them guidance on how to deal with mediation before and during the process.

The note should be commended as it is written in plain English, covers issues of use to lawyers and gives some guidance.

However there are concerns which shows the lack of knowledge of mediation within employment lawyers.

As the note points out only a number of cases will come into the catchment area of judicial mediation namely  

• A full hearing has been fixed for the substantive issues of at least 3 days in length;
• the case will usually involve at least one element of discrimination although some other complex cases are included;
• the claims are generally single claims, but occasionally judicial mediation can incorporate small multiples (ie two or three claimants);
• there must be no proceedings in other jurisdictions; and
• there must be no insolvency involved.

Fundamentally these are some of the most complex cases involved yet they are being dealt with by an Employment Charirman who is not a full time mediator.

One of the hurdles for promotion of mediation is lack of knowledge of mediation from the parties and a forum of mediation which only deals with a few cases is not going to give significant experience to the parties of mediation.

What is concerning is the information provided is fairly basic.;Lawyers are told to save client costs and clients can attend mediations on their own(Safe?)

There is no guidance on negotiation techniques either before or after the mediation, or whether it is appropriate to reject Judicial mediation, arrange your own mediaton or just go to Tribunal as the whole process could be a waste of time. 

The analysis given as to why you should consider mediation is given:

• Judicial mediation could potentially save time and costs because a full merits hearing can be avoided.
  
• The employment judge is neutral and has no stake in the outcome of the process.
  
• There is no discussion of the facts of the case in a public court
•  
• From a respondent's perspective resolving matters via a judicial mediation may enable a satisfactory commercial outcome to be achieved without appearing to have conceded their position.
  

On the other hand, judicial mediation could increase time and cost if the mediation fails.

There are some key reasons for the parties to consider negotiation training.

What happens if the employment judge discusses the case with a collegage after the mediation?

The case may not be discussed in a public setting, but it is critical that the parties are fully prepared for the mediation or they will be outgunned.

Justin Patten, Employment Solicitor 

Last week the 2010 FTSE 100 Directors’ Remuneration report from Hewitt New Bridge Street was published and it  shows that bonuses have increased.

The annual report shows the median total remuneration for the highest paid director in the FTSE 100 is just under £3 million, compared to £2.5 million last year.

Bonuses earned for the highest paid directors in 2009/10 were around 120% of salary, compared to around 90% last year, or around 75% of the maximum potential, 60% last year.

Over a third of FTSE 100 organisations have also frozen salary levels this year, compared to 60% last year. The report shows that where salary increases have been made, the most common rate of increase is broadly in line with inflation.

Rob Burdett, a principal consultant at Hewitt New Bridge Street, gives the explanation “The widespread salary freeze imposed in 2009 has thawed to a degree, the days of almost automatic year-on-year above inflationary salary increases for executives are numbered.

“Also, risk and greater transparency over executive pay have been embraced by many remuneration committees. However, bonuses paid this year have reached record levels, driven by the unexpected rate of improvement in economic conditions during the year.

“These bonus levels have not been paid due to companies purposely setting soft targets. In fact, our experience suggested that when these targets were set in early 2009 they were actually set to be tougher relative to budgets, in order to take account of possible reduced profits. "

When you read explanations you like this, you have to wonder what you are reading.

With an economy being kept afloat by record low interest rates, are we really living in a time where the economy is booming?

The search for the truth may involve the realistion that Company Directors are achieving high bonuses because they can get away with it. Before we get too moral about this, we can perhaps face up to the fact that greed is a fundamental aspect of the human condition and always will be. 

Justin Patten, Employment Trainer