British Airways vs. BASSA (Airline Staff Only)

[Tiramisu]

I just wondered why you feel that his suggestion that PTC should 'live with it' is aggressive and unsympathetic while your implied suggestion that Lurker should 'live with it' isn't?

Reargunner,
Actually, I also found Lurker's post to PTC aggressive and unsympathetic. Not the attitude or approach I expect from someone who's a CSD and a Customer Service Trainer.

I'm a CSD on Eurofleet.

[Tiramisu]

Posted by Lurker
Errrrrrr....... BA dont even recognise your existence so you will find that bit hard

Lurker,
It's early days and you never know what could happen and to all of us in the airline industry. We might all be on new Fleet!
As HiFlyer says, this is indeed a dark week for aviation.

By the way Lurker, where have you been?!
You are certainly making up for lost time!

[HiFlyer14]

Reargunner - no probs at all.

Deep breath. Re my post:

PTC made a post. Lurker told them "to live with it." Lurker then "whinged" IMO about strikers losing staff travel, pay etc.

I copied Lurker's post word for word to prove the point that you can't accuse someone else to "live with it" when you are not "living with it" yourself. Hence the quotation marks.

For the record (and this is becoming somewhat more painful than pulling teeth) I do not think strikers should "live with it". I think BASSA have very poorly misrepresented them, and I think they are only now beginning to realise what we have been warning them all along: The only losers in all of this are cabin crew. That reality is now dawning, and I feel very sad that it has taken this to prove it.

One thing we do agree on is this week's events are very serious indeed. I sincerely hope that Unite see it that way as well.

[HiFlyer14]

So, the aviation world is in turmoil. Customers and crew alike are stranded across the globe. People are missing out on weddings, funerals, birthday parties. Companies, not only airlines as entire airports have shut up shop, are losing money hand over fist. Redundancies will be a definite consideration now for many companies. And there is no sign of it abating.

And yet here we are having the usual cabin crew "he said, she said, I said" debate. Sometimes there are bigger fish to fry in life. This could well be one of them.

Enjoy your Saturday night wherever you are in the world. I'm outta here.

[hunterboy]

Anybody have any guesses at what the decision will be on Tuesday? Surely, BASSA can see what a PR disaster it would be if they announce a series of strikes after the last few days of disruption?
I should imagine that Unite wouldn't want to be associated with such a public suicide?

[demomonkey]

Whatever the decision on Tuesday, BASSA is effectively a busted flush. They pressed the nuclear button and not alot happened. Everyone saw that. They have no other tactics. Where do they go from here? How can the leopard change its spots when for years it has only practised militantism?

[wiggy]

If they've any sense at all the Reps will accept any offer on the table, claim it's not great but recommend it to the wider membership on the grounds they are doing the decent thing in truely exceptional circumstances.. (i.e. spin they are doing the public a favour), grumble a bit, and get their heads down. Of course this might mean accepting the consequences of ongoing disciplinaries and the Staff travel ban...

A Lurker

re

if a Pilot came out of the Flight Deck and started having a go at me for striking and I complained to you - what would you do?

I hadn't forgotten our debate, just been a tad busy. I would handle it the same way I would if anyone else had a go at someone on the crew. Fair enough?

[dave747436]

From what I understand, BASSA are overjoyed at the ongoing disruption.

They alledgedly believe that this is using up all BA's 'strike-busting' fund and Willie will have to accept any offer put to him by Unite, as he cannot afford any further strikes.

....

I know, I know. It beggars belief.

Have these people never heard of Compulsory Redundancy? Or SOSR?

Finnair personnel have been put on 14 days notice of stoppage of pay, apparently.

[Eddy]

Wiggy, I suspect the problem with the union just accepting "any offer" is that the members won't allow it. They won't want it. They've done too much and come too far to give in.

Many are hoping the union will harness the disruption caused by the volcano to further their own fight with the company.

Bassa is now in a very difficult position becuase they couldn't POSSIBLY settle for anything less than what was offered the week before the strike PLUS the full re-instatement of staff travel for strikers.

And in my honest opinion, there's more chance of Iceland apologising for f*cking up the world than there is of Walsh offering that.

[Eddy]

Originally Posted by dave747436

From what I understand, BASSA are overjoyed at the ongoing disruption.

They alledgedly believe that this is using up all BA's 'strike-busting' fund and Willie will have to accept any offer put to him by Unite, as he cannot afford any further strikes.

It's terribly sad that anyone would rejoice in the absolute misery being caused by this situation to the millions of people impacted. What's worse is that anyone would want to benefit from it.

As I mentioned a few pages back about my volunteering to work in the terminals, I do it because I recognise that it could be my mum or my friends who are stranded in an airport somewhere, gradually running out of money and not entirely sure what's happening.

How can anyone from a job that requires as much compassion and caring as cabin crew be thrilled for one second about this situation?!

Originally Posted by dave747436

I know, I know. It beggars belief.

Have these people never heard of Compulsory Redundancy? Or SOSR?

Finnair personnel have been put on 14 days notice of stoppage of pay, apparently.

Interesting info re Finnair. And scary, too.

I've just driven past WestBase at LHR and seen row after row of planes lined up. Not just BA, of course, but predominantly so.

And it actually made me really, really, really sad. I had a lump in my throat.... An airline shouldn't have planes just sitting around. Certainly not as many as that.

The scene reminded me of a picture from Airliners.net taken at Hong Kong Airport shortly after the collapse of Oasis.... Planes, sitting idle, with little indication of when they may ever see service again.

It's scary, and the glee that some are garnering from the situation is repugnant.

[Juan Tugoh]

The problem for BASSA in this is that the closer to the edge BA gets the more draconian the weapons it employs will become. If things get really serious then the much talked of SOSR amongst other things could easily come into play.

As BASSA's own QC stated in court and consequently accepted on the record on behalf of BASSA is that all BA have to do is give 3 months notice of contract change, and there is nothing that BASSA can do about it. Should the situation become really serious this could affect all BA employees.

Rejoicing over the volcanic ash is both naive and very stupid. This is likely to take down some airlines that are struggling post the recession, now without the resources they have extended to get through the last few years they are even more fragile.

[Eddy]

Originally Posted by ottergirl

Come on non-strikers, out of that closet, we are the majority!

OK. I'll accept the challenge.

I worked during the strike
but I'm not a member of a union, so had no choice, but am nevertheless proud of my decision

I've been deliberately cagey about my decision recently and I suspect the majority on here think that I went on strike, but I didn't. I worked. And I'll work again.

Bassa has an important place in this company. A very important place. But when something as serious as a strike is taking place, you have to make your own personal decision based on whether you think such drastic action is right - and I, personally, don't.

[wiggy]

Juan

As BASSA's own QC stated in court and consequently accepted on the record on behalf of BASSA is that all BA have to do is give 3 months notice of contract change, and there is nothing that BASSA can do about it. Should the situation become really serious this could affect all BA employees.

I suspect there's not a judge in the land who stand in the way of BA if they decide to use the SOSR weapon, given current circumstances. You're quite right in highlighting it could effect everyone in BA.

Eddy

It's scary, and the glee that some are garnering from the situation is repugnant.

Very true, as I'm sure you know there's an old saying along the lines of "if you don't understand why everyone around you is panicking you really don't understand what's going on"...appropriate perhaps?

[Eddy]

Could someone explain to me what SOSR is and how it would be allocated?

[Litebulbs]

Originally Posted by Eddy

Could someone explain to me what SOSR is and how it would be allocated?

A management free for all, basically.

[ShandyBoy]

To Strike or not to Strike

I think if unite/bassa call another strike after current volcanic events they better prepare themselves for a public and staff backlash on an even greater scale than that seen previously

And if they do, any suggestion that WW would help the union find a face saving escape route would well and truly fly out of the window.

[Litebulbs]

Eddy, something to read if you have a couple of minutes....

Overall considerations for an employer to have in mind when considering making changes in terms of employment include:

1. Changes should be discussed with employees in advance. Failure to do so will normally be unreasonable and be held against the employer in any court or Tribunal proceedings (see Unfair dismissal/consultation ).

2. It is quite common, especially when business are merged or taken over, for changes to be made to terms of employment so that terms applicable to various employees can be harmonised. If this is done, as is not unusual, by technically dismissing all the relevant employees but immediately reemploying them on the new terms then if 20 or more employees at one establishment are involved there is a statutory obligation to consult them in advance and failure to do so may result in imposition of a protective award (see Trade Union and Labour Relations (Consolidation) Act 1992 s.188, GMB v Man Truck & Bus UK Ltd EAT 2000 IRLR 636, EAT, Hardy v Tourism South East EAT 2004 EAT on 29th November 2004 and notes at Redundancy/consultation/general ).

3. If the employee agrees the changes, however reluctantly, they will normally be binding and there will not be any employment law problem. Agreement can be inferred by continuing in employment on the altered terms without raising any objection (see for example GAP Personnel Franchises Ltd v Robinson EAT on 16th October 2007 in which the EAT remitted a case back to the original tribunal to consider (i) whether an employee who had continued to work although he was paid a mileage allowance of 15p per mile instead of the 25p originally agreed had done so under protest and (ii) if not, to ascertain the point at which he should be treated as having affirmed the variation by acquiescence).

4. The common method by which an employer will sometimes get around the problem of changing terms of employment by persuading an employee to resign and then re-employ him or her on new terms can carry risks for the employer. If the "persuasion" in fact amounts to "dismissal" the employee will be entitled, all else being equal, to bring an unfair dismissal claim. The EAT has ruled that in deciding whether there was a dismissal "The correct approach ...... is to consider whether on a reasonable construction of the documents...they constitute notice of termination of the current contract of employment with the prospect of re-engagement or whether, as contended for the employer, they constitute an invitation to agree a consensual variation with a threat of dismissal if such consensual variation be not achieved ....." (Darby (1) Still (2) v Law Society of England & Wales, EAT on 14th August 2008 in which the EAT found that employees had been dismissed and were therefore entitled to bring claims of unfair dismissal - the EAT ruled that employees who had signed up to new terms of employment under threat of dismissal if they did not had been dismissed when the new contract was substituted for the old one. The EAT had come to a similar conclusion in another case a month or so earlier - see Saminaden v Barnet Enfield & Haringey NHS Trust, EAT on 7th July 2008).

5. If an employee does not accept the changes then if they were reasonable changes it is possible that refusal to accept them might amount to "some other substantial reason" which if sufficiently important could be a potentially fair reason for dismissing him (see Willow Oak Developments Ltd t-a Windsor Recruitment v Silverwood and ors, CA 2006 on 25th May 2006 and Forshaw v Archcraft Ltd EAT 2004 reported at [2005] IRLR 600, in both of which an employee had resigned after refusing to sign a new restrictive covenant). It will be the employer's (genuine and reasonable) view on whether a reason is a "substantial reason", not the view of the employment tribunal, which will be decisive (see Scott & Co v Richardson EAT 2005 on 26th April 2005 and Willow Oak Developments Ltd t-a Windsor Recruitment v Silverwood and ors, CA 2006 above). It will not automatically follow that the dismissal was fair but it will at least then be potentially fair (see Unfair dismissal/reasons making dismissal prima facie fair/some other substantial reason (''SOSR'') ).

6. If he does not accept the changes and is dismissed by being given the proper notice provided for by his contract the dismissal will not of itself amount to a repudiatory breach of contract. As a result if the employee jumps the gun and resigns before the end of the notice period he will not normally be able to claim unfair constructive dismissal (see Kerry Foods Ltd v Lynch EAT 2005 EAT on 20th May 2005).

7. A unilateral variation of contract terms is likely to amount to a breach of the term of trust and confidence implied into employment contracts (see Implied terms in employment contracts/duties of employer and for an example see Glendale Managed Services v Graham & ors CA 2003 IRLR 465 ([2003] EWCA Civ 773). A unilateral variation is not legally binding on an employee unless he accepts it (either expressly or by not protesting). If the employee is serious adversely affected by the change and he does not accept it, he will have the right to resign and claim unlawful constructive dismissal (for a 2005 example see Land Securities Trillium Ltd v Thornley, EAT 2005 IRLR 765 in which an architect succeeded in a constructive dismissal claim on the basis that her role had been changed from a practical to a managerial one).

8. The Equal Pay Act 1970 requires a claim to be brought within 6 months of the termination of the contract in which the inequality is alleged to have occured (see notes at Time-limits/for various applications to Employment Tribunals/equal pay act claims ). In a case in 2007 council workers bringing equal pay claims had had changes in their roles and hours recorded in purported new "contracts of employment". A discreet issue, therefore, was whether the claims were in time - this depended on whether contracts had been terminated (and replaced) or simply varied. The EAT held that this was a matter of objectively assessing the parties' intentions. If it was clear from the contractual documents that the parties had agreed to effect changes by way of a fresh contract, that must be decisive. However, it was not sufficient that an employer had issued a document purporting to be a new contract, because this would allow the employer to unilaterally dictate the mechanism used. Both parties must consent to the mechanism used. The employees who had not signed their revised "contracts" had simply varied terms; those who had signed had terminated the originals. Time would run accordingly (see Cumbria County Council v Dow & others - Equal pay time limits dependent on whether variation or termination of contract - EAT 18.5.07.

go to next updated reference in this note.

The EAT has held that a clause in an employment contract providing for commission payments to be paid to an employee "subject to such conditions and at such times as the company shall notify you in writing from time to time" should be construed to mean that if the employer wishes to unilaterally vary the conditions he must notify the employee not only of the existence of the conditions but must also notify their detail ( Steen v Ikon Office Solutions plc EAT 2003 on 20th May 2003, unreported).

9. In England and Wales, as with any type of contract, a variation will not be binding if there is no consideration for it (consideration is not required in Scotland). "Salary sacrifice arrangements", under which an employee gives up the right to receive part of their cash salary in return for the employer’s agreement to provide a non-cash benefit (for example childcare or workplace nursery vouchers, company car, bicycle loans or additional pension contributions), provide a good example of consideration being given for a change in terms of employment.

10. Under ordinary contract law principles, an employer who proposes a variation to an employment contract is making an offer to the employee which the employee can either accept or reject (Denmark Productions Ltd v Boscobel Productions Ltd [1969] 1 QB 699).

11. An employee who has signed an agreement, but added the words 'under duress', cannot be taken to have agreed to the changes (Hepworth Heating Ltd v. Akers EAT on 21st January 2003).

12. If economic or other circumstances justify changes to contract terms a Tribunal might find that any resulting constructive dismissal was not "unfair" (see ERA 1996 s.98(1)(b) and UNFAIR DISMISSAL/reasons making dismissal prima facie fair/some other substantial reason (''SOSR'') or that the dismissal was by reason of redundancy.

The employee may also be able to bring a claim for unlawful DEDUCTIONS FROM WAGES ETC case if his pay has been cut. However to do so he must not have worked on without complaint as by so doing he will be deemed to have accepted the reduction (for examples see Henry & ors v London General T'pt Services Ltd EAT 2001 IRLR 132, EAT, confirmed by the Court of Appeal on 21st March 2002, and Blows & ors v Dunlop Tyre Co (CA) 2001 , Court of Appeal; on 18th June 2001).

He may also be entitled to apply for a declaration and/or injunction spelling out the employer's obligations and requiring him to fulfil them on pain of being in contempt of court (see MacRuary v Washington Irvine Ltd 1994 EAT case 857/93).

Refusal to accept changes and working on under protest does not bar an employee from suing his employer for loss suffered ( Rigby v Ferodo Ltd 1988 ICR 29, HL). This could, for example, be a claim for unlawful deductions from wages etc (see Waterfield v Reliance Security Services Ltd 1998 EAT). Alternatively he may resign and claim constructive dismissal if the employer threatens to sack him if he refuses to accept changes to important terms of his contract ( Greenaway Harrison Ltd v Wiles EAT 1994 IRLR 380) or even accept new terms under protest and at the same time claim constructive unfair dismissal on the basis that he was constructively dismissed under one contract and is now working under a new one on new terms (see Hogg v Dover College EAT 1990 ICR 39, EAT).

However an employee who wishes to work on "under protest" while reserving the right to resign and claim constructive dismissal if the employer insists on enforcing the changes has to be very careful. If he works under the new terms under protest and then subsequently refuses to do so the employer will have grounds to dismiss him and will be able to successfully resist a claim of unfair dismissal simply because the did not keep his side of the bargain ( Robinson v Tescom Corporation EAT 2008 IRLR 408 which the EAT said, at para 22, was wholly different from Hogg v Dover College EAT 1990 (above) because Mr Robinson's contract of employment still existed).

An employer's contractual obligations to an employee can continue after retirement (eg for provision of medical health care insurance). An employer can thus be liable to pay damages to ex-employees if he unilaterally reduces post-retirement benefits to which they are contractually entitled (Baynham & ors v Philips Electronics (UK) Ltd 1995, QBD 7th July 1995).

How long must elapse before a person is deemed to have accepted unilaterally imposed variations to contract terms depends on the circumstances ( Western Excavating (ECC) Ltd v Sharp CA 1978 ICR 221). Delay in protesting against changes which have immediate effect (eg a reduction in pay) can be fatal but more latitude is allowed to employees if the change is to a term with delayed effect (eg rate of sick pay, see Jones v Associated Tunnelling Co Ltd EAT 1981 IRLR 477, or introduction of a mobility clause, see Anglia Regional Cooperative Society v O'Donnell 1994 EAT case 655/91 and Aparau v Iceland Farm Foods EAT on 12th March 1998. In 2002 the EAT dismissed an unfair (constructive) dismissal claim by a sales manager who waited for two months before resigning in protest against an increase imposed by his employer from 10 to 15 in the number of appointments he had to make per week. At the employment tribunal the employer accepted that this change was a fundamental breach of contract. However the sales manager had continued to work without protest (save for one initial protest), albeit on his "old" terms, and the EAT upheld the tribunal's ruling that he "had lost his right to treat himself as discharged from the contract by reason of this fundamental breach because he had not taken steps earlier to treat the contract as at an end and because he had carried on working for some two months" (see Smith v United Assurance Employee Services Ltd, EAT case EAT/0743/01on 17th April 2002).

In a general commercial context (not employment law) the case of Astea (UK) Ltd v Time Group Ltd [2003] EWHC 725 High Court (TCC) on 9th April 2003 provides useful insight into the considerations a court is likely to take into account in deciding whether a delay is "reasonable".

ERA 1996 s.138(1)(b) allows a four week "trial period" in redundancy cases where there is re-engagement/reinstatement of an employee on revised terms. ERA 1996 s.84 does not apply for unfair dismissal law purposes ( Hempell v W H Smith & Sons Ltd EAT 1986 ICR 365, EAT) but might nevertheless influence a Tribunal.

There is no generally implied term to the effect that employees' expense allowances provided for in their contracts at a specified flat rate can be reduced if that rate is later found to be in excess of actual expenditure (see Security & Facilities Division v Hayes 2001 IRLR 81, CA). Thus, to use an example from para 34 in that case, the driver of a particularly fuel efficient car may in fact incur less expense than is provided for in a flat-rate mileage allowance but will still be entitled to the flat rate allowance if that is what the contract provides.

If an employee refuses to accept a unilateral variation of terms, resigns and is successful in claiming that he has been constructively dismissed the contract will be at an end. The employee does not have to wait for actual implementation of the changes to claim constructive dismissal (for a recent example see Nelson v Kingston Cables Distributors Ltd EAT 2000 on 2nd May 2000). Any continuing restrictive covenants in the contract will normally come to an end with the ending of the contract (see General Billposting Co Ltd v Atkinson HL 1909 AC 118 HL) but this is not automatic (see Rock Refrigeration Ltd v Jones & anor CA 1997 ICR 938 and Restrictive Covenants/a general note ).

Difficult questions can arise when an individual's terms and conditions of employment are contained in a collective agreement negotiated between an employer and a trade union. If the employer and union negotiate a change with which an individual does not agree the individual may wish to assert that he is not bound by the changes (for an example in which an employee asserted exactly this but was held to be bound by changes agreed by a union official on behalf of employees generally see Harris v Richard Lawson Autologistics Ltd CA 2002 EWCA Civ 442, reported at [2002] ICR 765, CA). His legal position will then depend on whether the collective agreement was formally incorporated into his employment contract and if so whether it was incorporated "as from time to time" in force. If the answer to both those questions is "yes" it will be very difficult for an individual employee to argue that he is not bound by the changes (see Tocher v General Motors (Scotland) Limited [1981] IRLR 55). If the answer to either of those questions is "no" then the employee wll not be bound by the changes (unless he accepts them - which he could do by implication if he continued to work without raising objection) and it will follow that if they are significant changes he will be able to resign and claim constructive dismissal (see Singh v British Steel Corporation [1974] IRLR 131). It should be noted here that the fact that the individual is or is not a member of the trade union concerned is not of itself directly relevant. What matters is whether the collective negotiated terms and conditions are incorporated into the individual's contract. This may be more likely if he is a union member than otherwise but does not follow automatically (and of course no one can be forced to join a trade union - see notes at Trade union matters/closed shop agreements and Trade union matters/right to quit ).

It has been held that selection procedures for redundancy in a collective agreement are not apt for implied incorporation into an individual's contract as they are not part of the day to day activities between employers and the employees LTI Ltd v Radford 2001 EAT on19th July 2001. Even an express statement in upper case and bold letters in a collective agreement that "there will be no compulsory redundancy" was, given the context, held to be not apt for incorporation into an individual contract and was therefore not legally binding in Kaur v MG Rover Group Ltd CA 2004 reported at [2005] ICR 625 CA.

Rather than vary contracts unilaterally an employer might terminate existing employment contracts and offer new ones on new terms, taking care to give appropriate notice (see NOTICE PERIODS/by employer/statutory minimum ) to protect himself/herself against wrongful dismissal claims. Termination of the existing contracts will be dismissal for unfair dismissal purposes (ERA 1996 s.95(1)(a)) and qualifying employees will therefore be able to claim unfair dismissal compensation (see Bannerjee v City and East London Area Health Authority [1979] IRLR 147 and St John of God (Care Services) Ltd v Brooks 1992 ICR 715, EAT and see also UNFAIR DISMISSAL/wrongful dismissal (contrasted with unfair dismissal) ).

However, an employee who was offered a new contract on reasonable terms without substantial changes is unlikely to be awarded much (if anything) by way of compensatory award if he succeeds in claiming unfair dismissal (see UNFAIR DISMISSAL/compensatory award/calculation of ). The Tribunal will, however, normally award basic award in full. Knowing this, employers and employees sometimes agree cash sweeteners calculated by reference to the basic award formula in return for accepting changes in terms of employment (see also compromise agreements).

[Litebulbs]

Eddy,

Which leads you onto this -


There are two "hurdles" for an employer to overcome if he is to defeat an unfair dismissal claim. It is probably true to say that employers frequently get over the first hurdle but fall at the second.

First it is up to the employer to show that the reason for the dismissal is EITHER one of those set out in ERA 1996 s.98(2) (see other sub-topics in this Topic UNFAIR DISMISSAL/reasons making dismissal prima facie fair ) OR is "some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held" ("SOSR") (ERA 1996 s.98(1)(b)).

The second "hurdle" is that the Tribunal must decide whether the employer acted "reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee" which "shall be determined in accordance with equity and the substantial merits of the case" (ERA 1996 s.98(4)).

ERA 1996 s.98(4) does NOT allow a Tribunal to consider whether the reason for a dismissal was fair. It requires the Tribunal to determine whether the employer "acted reasonably or unreasonably in treating [the reason] as a sufficient reason for dismissing the employee".

In coming to a decision a tribunal must not substitute its own view of what is reasonable for the view of the employer. If an employer genuinely believes that he had sound reason for dismissing an employee then, provided the belief falls within the band of reasonable responses open to an employer, he will normally have a complete defence to an unfair dismissal claim. This "orthodox" view of the law was confirmed as correct by the Court of Appeal in Midland Bank plc v Madden CA 2000 IRLR 827 (now called HSBC Bank v Madden case A1/00/2086). This followed a controversy started by an EAT ruling in 1999 which had called into question the traditional "orthodox" interpretation of the relevant law (notably ERA 1996 s.98 - see Haddon v Van den Bergh Foods Ltd EAT 1999 IRLR 672, EAT and see notes at Unfair dismissal/conduct and misconduct as reason for dismissal ). These cases concerned allegedly unfair "conduct" rather than "SOSR" dismissals but for this purpose the principle is the same (see for example Perkin v St Georges HealthCare NHS Trust, [2005] EWCA Civ 1174, [2005] IRLR 934).

The EAT has held that it is normally incumbent on an employment tribunal positively to consider whether dismissal of an employee came within the band of reasonable responses which an employer could make so that if the tribunal comes to a decision without such consideration, or by substituting its own view of what was reasonable for that of the employer, then an appeal by the losing party is likely to succeed to the extent that the EAT would be likely to remit the matter back for a rehearing (see Retirement Care Group Ltd v Greener unreported, EAT on 22nd May 2002 and Scott & Co v Richardson EAT 2005 , EAT on 26th April 2005).

Many examples of "SOSR" being used to clear the first hurdle can be found. They often involve employers taking special action to protect the future of a business - see for example Ellis v Brighton Co-op Society Ltd EAT 1976 IRLR 419 (employee dismissed for refusing to work extra hours even though union accepted extra hours would be needed to keep the business alive), Bowater Containers Ltd v McCormack [1980] IRLR 50 (supervisor dismissed for refusing to supervise extra staff) and Chubb Fire Security Ltd v Harper [1983] IRLR 311 and Catamaran Cruisers Ltd v Williams & anor [1994] IRLR 386 (both examples of employees being dismissed for refusing to accept adverse changes to employment contracts pursuant to important business reorganisations). It is enough for the employer to establish a 'reasonable belief' which is more than 'whimsical, unworthy or trivial' that the reorganisation has advantages (Scott & Co v. Richardson EAT on 26th April 2005).

On their particular facts the resulting dismissals in four of the five cases mentioned in the preceding paragraph were held to be "fair" and the other (Scott & Co v. Richardson) was remitted back by the EAT for reconsideration by an employment tribunal. It should be noted that it may not be enough for an employer simply to claim that it was convenient or economically prudent for him to implement a business reorganisation in order to succeed in a claim that resulting dismissals were for "some other substantial reason" within ERA 1996 s.98(1)(b) and was "fair" under ERA 1996 s.98(4). In one case the EAT said that the employer must also show that he was under some kind of special pressure (McGibbon & McCoy v O.I.L. Ltd [1994] EAT case 537/94, 11th November 1994). However the EAT has also said "There is no authority for the proposition that it is unfair to dismiss an employee due to a business re-organisation that meets the requirements of Section 98(4) unless the employer was under 'real pressure' to carry it out" (Glasgow City Council v Deans & ors, EAT on 16th August 2006, at para 31) - so perhaps the best that can be said is that, in this respect, each case will turn on its own facts and merits).

A good example of "SOSR" being successfully used to justify a dismissal is Ely v YKK Fasteners Ltd CA 1994 ICR 164, CA. The employee stated he was intending to emigrate and would be resigning; the employers recruited and trained a successor. The employee then decided not to emigrate but was dismissed. The Industrial Tribunal, the EAT and the Court of Appeal all found his claim that the dismissal was "unfair" failed on the basis that his expressed intention to resign was "SOSR" justifying his dismissal.

Other examples of "SOSR" cover a wide variety of circumstances. To some extent, "SOSR" can even be used to get round unsatisfactory legislation. For example ERA 1996 s.197(1) required that an agreement to exclude unfair dismissal rights on expiry of a fixed term contract, when that was permissible, had to be in writing (see FIXED TERM CONTRACTS/rights on expiry of/exclusion of rights ). Strict adherence to the "in writing" requirement could lead to injustice and the "SOSR" route was used to provide a way out in North Yorkshire County Council v Fay CA 1985 IRLR 247.

Other examples of dismissals justified for "SOSR" include:

* Employee fairly dismissed because of the risk of disclosing confidential business information to a spouse who worked for a competitor ( Skyrail Oceanic ta Goodmos Tours v Coleman 1981 ICR 864, CA). However the risk must be a real risk if dismissal is to be within the range of reasonable responses open to the employer (and so the SOSR defence failed in Chandlers (Farm Equipment) Ltd v Rainthorpe EAT 2005 EAT on 8th February 2005).

* Dismissal of the director of Finance of St Georges NHS Trust because of his difficult personality and problems arising from inter-relation with colleagues and of management style was unfair dismissal. There was no suggestion of any technical incompetence or lack of integrity. However the EAT and the Court of Appeal both agreed with the employment tribunal that the director had contributed to his dismissal to the extent of 100% and accordingly declined to order any compensatory award (Perkin v St Georges Healthcare Trust [2005] EWCA Civ 1174, on 12th Oct 2005).

* Employee fairly dismissed for persistent absenteeism even though that was caused by genuine illness (Wharfedale Loudspeakers Ltd v Poynton [1994] EAT case 82/92);

* Employee fairly dismissed because of disruptive antagonism between two employees in a small business (Triangle Cars v Hook 1999, EAT Case EAT/1340/98 on 1st July 1999).

* Employee fairly dismissed because of pressure from a customer or important 3rd party on the employer. The employer in such a situation is not required to justify the decision taken by the third party (see eg Scott Packing & Warehouse Co Ltd v Paterson [1978] IRLR 166 and/or Grootcon (UK) Ltd v Keld [1984] IRLR 302, quoted with approval by Burton P. in B v BAA plc EAT 2005 on 19th May 2005). Note that whether 3rd party pressure justifies dismissal in any particular case will, as always, depend on the particular circumstances. This will include especially whether the employee was warned on accepting the job that he might be dismissed if customers/clients of the employer so requested (see Rigblast Energy Services Ltd v Hogarth [1994] EAT case 665/93 and/or Dobie v Burns International Security Services (UK) Ltd CA 1984 ICR 812 in which the Court of Appeal held that a security guard had been unfairly dismissed when the reason for his dismissal was the insistence of the local authority which controlled Liverpool Airport that his employer, who was contracted to provide security services at the airport, should not allow that particular individual to do the job). The EAT has held that in this type of situation failure by the employer to consider whether the dismissal would cause an injustice to the employee would be an indication of the fact that the employer had not acted reasonably in all the circumstances (Greenwood v Whiteghyll Plastics Ltd, EAT on 6th August 2007).

In a case in 2009 an employer's client unreasonably refused to have a particular employee working for it. The employer dismissed the employee who sued for unfair dismissal. The employer was able to show that it had done everything reasonably possible to avoid or mitigate the injustice brought about by the stance of the client and both the employment tribunal and the EAT concluded that in those circumstances the dismissal was not unfair dismissal (see Henderson v Connect (South Tyneside) Ltd, EAT on 1st October 2009).

* Employee fairly dismissed for refusing to accept new (worse) terms of employment pursuant to a company reorganisation undertaken for sound business reasons ( Hollister v NFU (CA) 1979 ICR 542, CA). This was "some other substantial reason". In a later example it was also held to be relevant that only one employee out of several had refused the new terms - the EAT held that the dismissal of that employee was fair, noting that "it was necessary to prevent one man continuing to work on the old system which could have led to discontent among the employees, and disrupt industrial harmony" (Grampian Country Food Group Ltd v McInally, EAT on 17th November 2004).

* Chief executive fairly dismissed by new owners of the employing company after a take over battle in which he had strongly fought against the new owners and had even mounted a competing bid (see Cobley v Forward Technology Industries plc CA 2003 EWCA Civ 646, Court of Appeal on 14th May 2003, reported at [2003] ICR 1050).

* The Court of Appeal in 2006 agreed with the EAT that an employee's refusal to sign a new contract of employment containing restrictive covenant could be "some other substantial reason" for unfair dismissal law purposes provided the requirement for the covenant's was genuine and not "whimsical or capricious" or a put-up job designed to get rid of the employee (see Willow Oak Developments Ltd t-a Windsor Recruitment v Silverwood and ors, CA 2006 on 25th May 2006 overruling Forshaw v Archcraft Ltd EAT 2004 reported at [2005] IRLR 600 and see also notes at Restrictive covenants/a general note ).

* In a case in 2007 involving dismissal of an employee who was responsible for care of children after receipt by the employer of an enhanced disclosure letter containing adverse information about the employee, the EAT said that an employment tribunal "should have had no difficulty in holding that that was 'some other substantial reason' for the purposes of ERA 1996 s.98(1)(b)" (see B v. A EAT 2007 (Scotland) on 3rd April 2007).

There are two statutory "SOSR's". Note that they are otherwise the same as other "SOSR's" so the fact that they are statutory does not make resulting dismissals automatically fair (any more than is the case with non-statutory "SOSR's", as above). A statutory SOSR occurs:

(i) Where a dismissal takes place in connection with transfer of ownership of a business and can be shown to be for an "economic, technical or organisational reason entailing changes in the workforce" (see TRANSFER OF BUSINESS OR UNDERTAKING/economic, technical or organisational defence ).

(ii) Where a dismissal is of a temporary replacement taken on to cover for an employee who has returned to work after maternity leave or medical suspension, provided the temp was informed in writing of the position (see MATERNITY/maternity leave/dismissal of temporary replacement and ERA 1996 s.106).

Footnote There is no statutory authority for referring to an "SOSR" as making dismissal "prima facie fair". Technically, it does no such thing, although for practical purposes can be regarded as normally having that effect.

A more accurate statement of the position is that the onus of proof is on the employer to satisfy the Tribunal that the "SOSR" was the reason for the dismissal; and that if the employer satisfies the Tribunal on this point the Tribunal must then make its decision, without any presumption either way, as to whether the employer acted "reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee" (ERA 1996 s.98(4) and see UNFAIR DISMISSAL/fair or unfair? ).

[Litebulbs]

So Eddy, Basically SOSR is a very complex thing!

[Eddy]

Currently stranded in London so plenty of time to read that.... but little of it registered


Thanks for the effort though, chaps