Monthly Archives: February 2015

Employment Law and Lego

This week I spent some time analysing an employment issue with a colleague. There were numerous potential outcomes, depending on the findings of fact to be made by a Tribunal at various stages. Each would bring different legal issues into play.

Ultimately, although tempting to explore and discuss each legal argument until the proverbial cows came home, our advice was reached by stepping back from that and applying some good old common sense to the analysis. What would an Employment Judge be likely to conclude, taking everything into account? Which of the legal arguments would be most palatable? Which of the arguments, although legally sound, would be unattractive in the cold light of an Employment Tribunal?

It reminded me that a good helping of common sense is essential to employment law analysis. After all, if an issue gets to a Tribunal hearing, it will be decided by an Employment Judge with their own experiences, opinions, interests and character, some of which may inform their decision and some of which they will try to put to one side.

It’s a bit like those Lego head storage boxes. A smiling face on the outside but take off the lid and there’ll be a mass of different coloured and different sized bricks inside. Some will already be half built and assuming a shape of some kind, others will be ready and waiting to be applied and built in one direction or another. Some will simply stay where they are on the basis that they’re not useful or relevant to the project in hand.

It’s worth remembering that Tribunal decisions are made by people applying the law, with all that entails. If you’ve ever had a bare footed collision with a random Lego piece, you’ll know: a lack of attention to that stuff can have pretty painful consequences. Thankfully, at Workwise our experience enables us to provide advice based on the Lego, as well as the law.

Claire Collinge

Staff Handbooks need careful drafting too

Most employers know that they need to be pretty careful about what they put in their employees’ contracts. If you give your employee an extra week’s holiday or an extra £500 salary in their contract by mistake, you’re going to have to live with that or go through some fairly complicated legal manoeuvres to get things straight.

Staff handbooks, on the other hand, are often seen as an altogether more casual affair. Lots of things from car park use to canteen opening hours can find their way in there. I was once even asked to advise on a hand gun policy that a client wanted including. (That was a Texan client, I explained that it wasn’t really necessary in the UK to tell employees whether they could bring their guns to work.)

Sparks and another v Department for Transport has reminded us all how dangerous this can be. The Department for Transport (DFT) decided to change the trigger point for an absence management process. The High Court found that the original trigger point was incorporated into the employees’ contracts of employment. Consequently it could not be changed in the way the DFT had purported to change it. It could only be changed (in accordance with the terms of the handbook) if the change was not detrimental.

Nothing in the judgment is particularly surprising. However it is a timely reminder that (1) careful thought should be given to what is included in the staff handbook; (2) employers should be very clear about which (if any) of the staff handbook’s contents form part of their employees’ contracts of employment.

Paul Evans