Is it too hard to get sacked?
- 31 October 2010
- From the section Business
Should employers be able to sack people more easily?
Just asking the question is stepping into territory that is both deeply personal and extremely political.
It is likely to become more political, because a commitment to review how employment law is working has been largely unnoticed in the government's coalition agreement.
It also raises very strong opinions.
Some believe that the law is now so complicated and slanted towards employees that employers end up paying off people they should be sacking.
Others look at the public sector and wonder whether the problem is worst there.
For Radio 4's Sack 'Em programme, we have been examining both questions, and we have unearthed some new facts, and some extraordinary stories.
It turns out that there is a lot of truth in both concerns - but neither is the whole story.
Employers' organisations like the British Chambers of Commerce are very critical of the current system.
It believes employment law changes so often and imposes such costs, that according to its policy adviser, Abigail Morris, most of the time employers "only know that the law's changed when they get a claim coming through from an employee that said they didn't do something that they should have been doing".
She argues that the system is now biased against employers, and many lawyers we spoke to agreed.
One told us of a recent case where his client paid out £2,000 to a former employee.
He believes his client was in the right and would have won her case.
The problem? She would have spent £25,000 on legal fees, and with no opportunity to recoup those costs in employment tribunals.
Hina Belitz, another employment lawyer, says deals that are done - often under cover of "compromise agreements" - are widely used and one of the best-kept secrets in the trade.
But she says "employment laws are being sidelined and in some cases that may include justice… justice has a price in employment law".
Interestingly, the public appear to back the Chambers of Commerce position.
In a poll in October conducted by ComRes, 57% of people agreed that "employment law provides too much protection to employees who perform or behave badly at work."
The statistics offer a mixed picture, though.
Last year, half of businesses who defended a case in front of an employment tribunal hearing won.
And Sarah Veale of the TUC says employers should ignore the lawyers and defend themselves.
"You don't need lawyers in there for the initial stages, just use common sense, use your employers association if you're in one, go to [conciliation service] Acas, there's lots and lots of help out there that costs absolutely nothing," she says.
She believes that settlements are more often because an employer has got it wrong, realises it, and rather than spend money on lawyers, decides to settle with the employee.
We have been told that the government is considering two options to deal with this: introducing fees for people who bring cases to tribunal, to cut down on false claims; and insisting that all cases go to Acas before tribunal.
At present they all go to Acas, but only after the forms have gone to the tribunal service.
The second issue we explored is how all this works in the public sector.
Gary Walker, a former hospital chief executive, told us that moving people sideways instead of sacking them is incredibly common.
"I've worked in organisations where they've had multiple hospitals in a service and one of those hospitals is where physically people went to work if they weren't wanted in the main hospitals," he said.
Gary was himself sacked, he says unfairly because he questioned whether targets could be met without compromising patient care.
He claims it is easier not to go into a disciplinary procedure and instead find alternative ways to do things.
"I think the public should be concerned about who's left running their services," he says.
One of the problems in assessing this issue is the lack of reliable facts, but using the Freedom of Information Act we have been able to find out what has been going on.
And again, the picture is mixed.
First, it is not true to say that no-one gets sacked in the public sector. Take two examples.
In the Department for Work and Pensions, one of the largest parts of the public sector, in 2009/10 1,131 people were sacked - almost 1% of the workforce. The year before another 1,192 were sacked.
But of all these people, just 43 were sacked for capability.
Or take Doncaster Council, which in April 2010 the Audit Commission branded "failing" and incapable of making improvements.
Yet in the last three years just 10 people have been sacked for capability - out of almost 7,000 to leave the council.
It will be interesting to see whether next year's figures paint a different picture.
Sack 'Em will be on BBC Radio 4 at 2000 GMT on Monday 1 November