PARTYGATE, SEAFARERS AND MORE ACA excellence in practice
Partygate, Seafarers and the co-efficient of the expansion of Brass…. Max Winthrop wonders about the wisdom of having office parties
Max D Winthrop, partner, Short Richardson and Forth Solicitors
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Apparently minor details, in law as in other fields of human endeavour, can in the right circumstances have quite extraordinary ramifications. The law of negligence derives its founding principles the consequence of what may have been in a bottle of lemonade, offered as a thirst quencher at the Minchella Café in Paisley one sunny summer in the 1930s. Alfred Arthur Rouse suffered the ultimate penalty because his defence to murder - based on expert evidence - collapsed when his engineer did not know the answer to on question: what is the co-efficient of the expansion of brass? And a couple of years back the Supreme Courts of both the USA and the UK grappled with questions of free and coercive speech where the contested subject matter was what bakers were prepared to bake for their customers, and how the cakes were to be decorated. Only a few years ago the idea that a workplace party and the presentation of a birthday cake could provoke a constitutional crisis would have seemed laughable. But as I write this, while war of a type few would have dreamed would return to Europe rages, the seemingly trivial has the potential to undermine not just governments but a fundamental constitutional convention that Parliament should not be misled. I am not a constitutional lawyer, however, and so the detailed analysis of the Partygate crisis I leave to others. However: it does have one resonance, albeit at lower level, for employment lawyers: how can conduct outside the workplace and the working day form the basis of a potentially fair dismissal? Before lockdown put paid to office parties, January and February used to be a time when employment lawyers would be awash with enquiries where the factual matrix concerned office party had proved a little too in terms of temptation for particular employees (or even, dare I say it, the bosses). Like so much in employment law context is all: even criminal behaviour may not be sufficient to instigate disciplinary sanctions, a principle set out clearly in ACAS’s Code of Practice. What is important, in deciding whether any particular activity is sufficient to justify a disciplinary sanction, is the employee’s suitability to continue to do the job in the light of the allegations, and the effect that the allegations may have on work
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colleagues and customers. Thus, in the case of Pay v Lancashire Probation Service the employee was a very well regarded and long serving Probation Officer. He did, however, have a side-line: he performed in fetish clubs and ran a mail order company that supplied bondage and sado-masochistic “equipment.” Notwithstanding arguments based on the right to a private life, or that none of his activities took place in working hours the dismissal was held to be fair: the potential damage to the employer’s reputation justified dismissal. Just before Partygate dominated the headlines there was one other story that took precedence for a time over the war in Ukraine: the mass sacking at P & O Ferries. For a maritime nation, the rights of those that work in our merchant fleet rarely excites much attention. Indeed, as foreign flagging has increased since the middle of last century it is perhaps a little misleading to talk of “our” merchant fleet. Whilst the method of communicating mass redundancies seems to have generated much of the criticism – I think because it was pre-recorded – the whole sorry saga has illuminated just how technical the law of collective redundancies has become, and how many traps await the unwary, whether employer or employee. Of course, unless any ACA members run their practices from a floating HQs in international waters, they are unlikely to be faced with some of the technicalities assiduously ignored, so it would seem, by P & O ‘s management. And what a lot of technicalities there are. Whilst much media interest concerned that pre-recorded Zoom call, employment lawyers have been asking questions such as how many seafarers were there on each ferry? Where were the ferries going – between ports in the United Kingdom or between the United Kingdom and ports in other jurisdictions? How long had the crew been employed? In which state were the crew domiciled? The answer to these questions can make all the difference between a nailed-on claim or a complete defence. Part of the problem is the way we legislate. Rationally you might expect there to be one statute that has the answers to all the questions posed above, but there is not. Individual questions of fairness are covered by the Employment Rights
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