Yesterday I wrote to Dominic Raab MP about the current debate on ‘no fault’ dismissals. I quoted a paper he wrote late last year where he made some pretty suprising claims about the current state of the law on dismissals for poor performance.
I was a bit surprised late last night to receive a reply from him. Here it is:
Thanks for your email.
We will have to agree to differ on this. I have had an enormous amount of feedback from employers based on practical experience that directly rebuts your legal analysis. Whatever the law books may or may not say in theory, employers are being taken for a ride in practice.
Best wishes, Dominic
Well as an argument, that sounds pretty familiar. Here’s my reply.
I really appreciate your taking the time to reply to my email so quickly. I didn’t expect us to agree on what the law of unfair dismissal should be. However I am surprised that we can’t even agree about what the law currently is.
The analysis I put forward is not some theoretical model that I’ve extracted from a text book. Employment law is a practical subject, and I have many years of experience giving practical advice to real employers about how they can manage people within the law. I described the law correctly and if any Tribunal applied a different standard then I would expect that to be challenged on appeal. It is noticeable, however, that this is not an area that generates much case law. This is good evidence, I think, that the Tribunals are applying the accepted standards that have been a settled part of the law for decades.
The ‘feedback’ that you have had from employers is not a sound basis for a change in the law. The reasons for this should be obvious. First of all, there are two sides to every story and I note that your evidence comes from the employer’s side only. Secondly, I too have spoken to employers who feel they have been ‘taken for a ride’ but the case has rarely reached the Employment Tribunal. They may have received over-cautious legal advice, or poor internal advice. Line managers often fail to deal with poor performance because they feel awkward and embarrassed about bringing the subject up. Could it be that when senior managers later want to know why an issue was never addressed, the ‘law’ is a convenient scapegoat? Obviously if you have actual Tribunal decisions to back up your argument then that is a different matter. These are public documents. If you give the appropriate reference, we can all read them and see if there is a real problem here.
I confess to finding it frustrating that the critique of unfair dismissal law used by those promoting the ‘Beecroft’ proposals is so very general and non-specific. We are told that the law is too onerous, but never told just what it is about the law that is unreasonable. Is it the need to give the employee a warning before dismissal? Is it the frustration of having to allow an employee a reasonable chance to improve? I wrote to you because you made specific claims about what the law currently says and gave an employment law text-book as your source. It is a shame that when challenged on the specifics, you fall back on the familiar, generalised, appeal to anecdote that tends to characterise the debate on this topic. I think we are entitled to a more rigorous approach from those who are proposing a significant change in the current law.
All the same, I appreciate your reply.
I suspect that the correspondence ends here – although I’ll post any further reply that i get.
What do we learn from this? There is still work to be done in making sure that employers understand how employment law really works. My view remains that unfair dismissal law needs no major reform. Instead, employers need to understand that behaving reasonably does not mean running away from awkward conversations, or putting up with a job being done badly. Employers are entitled to insist that a job is done well. However they are not entitled to dismiss employees on a whim without giving them a fair opportunity to demonstrate that they can work to the required standard. Those promoting the ‘Beecroft’ agenda would probably deny that that is the result that they are after – but beneath the generalisations and the anecdote, we should be clear that that is what they are proposing.