Retrospect-Happenstance- Perspective

Its often necessary to re-evaluate recent events, co-relate to past events and re-assess based on historical antecedents the provenance of happenstance. One often wonders what could have been or not?

I wonder what would have happened if I hadn't boarded the Harka Air flight from Kaduna in Nigeria in 1995, the fact is that I survived the crash and healed from my injuries and recovered my financial losses, so what then did I lose other than the experience and what did I gain other than the wisdom and perspective of survival, when perhaps several of those more worthy than myself died painful deaths in the crash.

I wonder what would have happened if I hadn't decided to take a taxi to see Yusuf A in Kaduna in 1995, perhaps I would have avoided the 11 armed and drug-crazed Policemen who abducted and robbed me, but then I survived, when at least three probably more deserving people lost their lives, on the same night. What I lost in fear and financial loss I gained in the loss of fear and once again the wisdom of survival.

What would have happened if I hadn't stayed and had "one last drink" in Soho with Alex in 2000 and if the Victoria Line hadn't shut down at Finsbury Park and terminated at Highbury and Islington, I wouldn't have been passing by when the two men were about to rape the young girl and raised an alarm, at least the Police said thank you.

What would have happened if I hadn't gone to deliver the Magistrate sisters Wedding Invitation in 1993, I may have been spared the pain and heartache, but I would not have experienced the sublime happiness of 4 years and most importantly I would not have my D and K.

On the other hand what would have happened if Lexi and I had stopped over at the Supermarket to buy some drinks on the way to the Studio in Surulere, Lagos in November 2005, the extra 10 minites spent would have placed us smack dab in the middle of the most violent armed robbery attack in Lagos at the time in which a whole street was cordoned off and everyone in between robbed and in which three people were shot dead.

What if I had taken an extra couple of minutes on the tube, I may not have gotten the phone call from JB inviting me to take on Partnership at N&C, minutes before I was meant to be signing a new Contract at MG. I may have been spared the trauma of the last 15 months, but I would not have otherwise have had the opportunity of generating the amount of gratitude I gained from people whom I represented for free simply because they had nowhere else to go, the opportunity to shape the Law in my own small way in AG V Z; A v B; In Re B and so on, many with longer careers did not achieve half of what did in a few years in this Jurisdiction and for that I am grateful and in a strange way proud.

The fact is that whatever is ordained in life will be, if it isn't- no amount of desire, drive and or caution/planning or risk assessment will prevent it. of course one has a duty not to take reckless risk, but life is a wondrous spectacle and I have learnt never to regret anything I have done and whilst one has one's moments, I am grateful that I am and have been alive to be able to make the choices I have- good or bad and the prayer I say at the end of another wonderful year is for God to give me the permanent gift of perspective.

May all our dreams come true in the coming year and and most importantly, may we be preserved in life to see the fruits of our labours and exertions, many who entered this year are no longer with us, perspective no?

Ps/ By the way this is the 200th Post on this Blog, thanks for reading.

Dismissal – A Game of two halves

I have re-posted two articles I wrote last year on Dismissal, in the light of recent discussions and hope its useful to whoever.

Lets get straight to the point, an Employer can dismiss an employee if a. he/she’s guilty of misconduct e.g dishonesty, Racial abuse, Sexual abuse, Gross breach of Trust; b. other less serious but substantial breaches of Contract e.g Poor work output/quality, attendance etc; c. Incapability of the employee to do the job he's employed for; d. Business expediency. In addition there can be a dismissal on the basis of Redundancy i.e a genuine redundancy situation- as opposed to a ham-fisted contrivance targeted at getting rid of a pesky employee.

This isn’t rocket science, its an employers right under the Law, however there are rules for these things like everything else. The employee has a right to be heard at a meeting, in respect of the allegations made and an opportunity to state his side, prior to dismissal. He equally has a right to be accompanied by either a Union Rep or a Friend to any such hearing, but not to be represented by a Solicitor. It is equally important that the hearing is presided over by a person or persons distinct from the Individual(s) who have made the complaint against the Employee otherwise bias may be inferred. A rehash of the rules for this a. Inform the employee clearly of all the allegations against him/her and make available all material you rely on, b. Ensure an impartial panel at the earing and; c. At the hearing, the employee should be allowed all reasonable opportunity to state his side and be accompanied if he wishes.

Now when is Dismissal Unfair? In an infinite number of circumstances based on the specific facts, however the common sense heading would be when the Employee has not breached his Contract, has not been guilty of misconduct, where the proper disciplinary procedure has not been followed, where there is no genuine redundancy situation and where the Employer has fundamentally breached a contract whereby an employee is entitled to treat himself as having been dismissed (Constructive Unfair Dismissal)- simple. The facts are often intricately different and it is often a matter for the Employment Tribunal to determine after hearing evidence from both sides. Its absolutely important to make clear that to bring a Claim for Unfair Dismissal, you have to have been employed continuously for at least a year. If you have not spent up to a year, then the only claim you are entitled to bring is for Wrongful dismissal of which the remedy is Notice pay and no more.

However in a majority of cases, a sober eye can usually tell where the pendulum is swinging and its no coincidence that majority of claims are settled before a Claim is either filed or heard by the Employment Tribunal, either by the parties or with the help of ACAS- the Governments Independent Arbitration service (who in my view are half-asleep most of the time, but often have the rare dedicated Officer, who will actually push a settlement- usually female). The prospects of settlement usually require a consideration of a realistic and commercial view of the cost vs. benefits of heading to the Tribuna. The Employer will usually employ a Firm of Solicitors and a Barrister over a minimum of one, two, three or even seven days- not counting preparation time, with average costs of £5000-£15,000.00 or more, depending on the complexity. Common sense usually dictates paying the guy £2000.00 after some hard-nosed bargaining if that’s all he wants rather than spend all that money and have key managers out of the office for days.

Unlike the Courts, costs aren’t generally recoverable at the Employment Tribunal, unless a party has behaved unreasonably or irrationally, e.g bring a Claim for £100,000.00 because the Boss got rid of the Drinks dispenser, or where an Employer has been patently unreasonable in dismissing or indeed maltreating an employee and then refuses to explore settlement. I need to mention however that the power of the Tribunal to award costs has been expanded of recent and its also necessary to mention that the Tribunal whilst conceived as a simple, self help forum for employees to seek justice has increasingly become bogged down by procedure and red-tape and in some instances actually outstrips the County Court for formality- another reason to avoid it if you can.

A word for the Employee at this stage- If in doubt get advice from your Union, a Solicitor or CAB at the earliest opportunity there are strict steps you must follow, which may be laid down in your Employee Handbook or which are contained in Employment Statutes, for which you will need help in interpreting. Do not take anything for granted. Most importantly, take all reasonable steps provided either by the Employee’s Handbook or by commonsense, to seek a resolution of all matters, however never admit anything you are not sure of or take any steps which may legitimise any wrong action taken against you by your Employer. It is impossible to provide an exhaustive list of these, hence advice is crucial.

The most important piece of advice being after having explored all these avenues, make sure your Claim is filed three months less one day after you were dismissed. What this means plainly is if you were fired on Friday 19th May, make sure your application is filed on Friday 18th August at the very latest, my candid advice is that you file it before 4pm, do this by Fax it’s the most reliable. After faxing, call the Tribunal and ask the staff if they’ve received it, when in doubt send it again, they may hate you for sending a thousand copies, but at least the Tribunal will hear your claim. The time limits are extremely strict and the Employer will happily exploit this. The Tribunal will very rarely extend time, even if your were very ill beforehand, once you had an opportunity to do so within time and didn’t, it will weigh against you, even though your claim is super-strong.

Its also necessary to mention that if you haven’t quite gotten your claim ready as the time limit approaches, file the Claim anyway, including every conceivable claim you may have (a holding or omnibus claim), this being because you are allowed to amend later and file a proper and complete Claim. However you may wish -out of courtesy- to have a word with the other side and make clear why you had to file in that manner and agree that they be given additional time to respond to your Claim, whenever you perfect it.I also need to mention that being a Claim under contract, you may bring the Claim in the High Court where the Claim is especially complex and the amount claimed is large.

What to Claim: Majority of Claims under Unfair Dismissal are for money, however you may ask to be re-instated, though the employer is not bound to take you back, then you can ask for money. The money claim comes under two heads – a. The basic and; b. The Compensatory award. The Basic award is indexed to the numbers of years you’ve worked x £250.00 for each year, the Compensatory award is based on the loss of earnings which you shall face e.g on an income of £3000.00 a year, if you anticipate that you are unlikely to ever find work until retirement age and you’re 50, its likely to be 10 x £3000.00 - £30,000.00. The limit of compensation is £50,000.00, unless there’s a Claim for Sex, Race or Disability discrimination, where there’s no limit. Basically, you can’t simply put in any old figure you like in the Claim Form because you want to “hit the bugger where it hurts” (I’d actually leave that to his Lawyers, believe me they never lose). Bear in mind the actual amount you're entitled to, may be reduced under the following circumstances- a. Polkey Deductions- Where the Employer might have dismissed you anyway for good reason e.g Long term sickness; b. Failure to mitigate loss- You are required after dismissal, to actively look for work, as opposed to sitting on you haunches waiting for a settlement, failure to look for work and present evidence of actual Job search may result in a reduction of the award.

The Hearing

The hearing usually takes place before a Panel of three consisting of a Qualified Solicitor or Barrister as Chairman and two non-Lawyer members, one an Employer and the other an Employee member (a fine balance).

The Employer usually calls his witnesses first, examines them (asks them questions based on the facts you rely on for your claim) in a bid to disprove your claim, you then have a chance to cross-examine; basically to challenge the answers the Employers witnesses have given. You can ask pretty much anything in cross-examination, however you may not call the witness a twit or a blithering Idiot or any other form of abuse for that matter and your questions should be relevant to the issues or at least relevant to proving that the witness is a bare-faced liar- in a subtle way of course. They may want to re-examine the witness to straighten out any ambiguous or problem points arising from cross-examination, no new evidence is allowed at this stage.

You then call your witnesses and whilst questioning, you should not lead them i.e direct them to an answer, you should keep your questions relevant and most importantly short and effective. Hearsay evidence is allowed, but less weight is placed on it. The Tribunal will usually ask its own questions of the witnesses to clarify points, try and restrain yourself at this stage they haven’t taken a position and just want to establish points that may have been missed.

After the witnesses are called, then submissions or arguments are heard from both sides as to why they should win, you summarise your facts and repeat relevant points raised in the evidence in your favour and try and explain points raised against you. If you have any knowledge of relevant laws, make your points at this stage (if you don’t, then you should have bloody well gotten advice first). The Tribunal will then close the session and subsequently deliberate on the evidence and arguments and invite the parties back for a decision or post the decision to you in writing.

Appeal: If it goes against you, you have 42 days to appeal to the Employment Appeal Tribunal. You have to file a Notice of Appeal (a special form) and attach your Grounds of Appeal. Basically, your grounds must be based on the fact that the Employment Tribunal has made a mistake in Law or applied the facts so terribly wrongly as to amount to an error of Law. If permission to appeal is granted, then its heard over one day in front of the same type of Panel at the Tribunal and a decision is usually given on the same day- read out in Court.

Moral of the story- Employment Tribunal disputes are extremely stressful, time-consuming and expensive- avoid them if you can. If you can’t , then seek the earliest and best opportunity to settle or accept a settlement if it makes financial sense. If not possible, then get proper advice and prepare adequately, it’s a battle believe me.

© Edward Keazor

Take This Job and Shove It?- The Constructive Dismissal Conundrum

I'll try and keep this simple- one of the nightmares of Employment Lawyers when advising is deciding if a client has merely resigned or if he's been forced to resign - unfairly. The latter entitles him to claim for Unfair Constructive Dismissal. For resignation, he gets- zilch, for Unfair Dismissal,.. well he gets an award (discussed previously). This principle was established in a fairly old case Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27A bit of background, in an Employment Contract, there are usually written terms, e.g Contract or at least a letter of Employment (if none then damages are due to the Employee, by the way). The written terms define the basic terms of employment.

Also the Law usually will assume whats called Implied or Unwritten terms, the relevant one here being an Implied Term of Mutual Trust and Confidence, what this means is that there is a responsibility on both sides to treat each other and act in a civilised respectful manner, basically do your job without disrespecting me and my company verbally or in action e.g disloyalty, leaking trade secrets, assisting competitors. For employees it means, give me the tools to do my job, pay me as agreed and treat me with a minimum respect due to a human being or employee, no abuse racial, sexist or otherwise. Don't deliberately make things hard for me and don't undermine or harass me. Of course this list is not exhaustive and the rules often differ as to what is acceptable in different work environments, e.g a Building Site or Restaurant Kitchen will have different considerations from the Admin Department of a Women's Crocquet Club. Essentially, the Employer should not breach a Fundamental term of the Contract, e.g providing the Employer with a suitable working environment, work or indeed support, also he should not breach the Implied Term of Mutual Trust and Confidence. A Claim for Constructive Dismissal cannot stand on its own, the dismissal also has to be seen to be Unfair for the Employees to be successful.

How do you differentiate between resignation and Constructive Dismissal? Here are a few ground rules:

a. The action by your employer must go to the root of the relationship and result in it being absolutely clear that there is no way you can continue to work there or that it no longer wishes to respect or be bound by the Contract of Employment, an example being if a Supervisor is verbally abused and undermined by his/her Employer in front of his/her team and if deprived of responsibility; Sexual harrassment, physical intimidation/bullying, False accusations, preventing return to work after maternity leave etc. Clearly these examples show that the Employer either does not wish to keep the Employee on or doesn't care either way.

b. The action must be in direct breach of a Fundamental term of the Contract or the Implied Term of Mutual Trust and Confidence. The Tribunal time limits still apply here in that if the action you're complaining about took place over three months back, you're out of time. However if there's a series of events and the final act happens within the time limits then the previous incidents can be brought to the Tribunal as a Claim - this is described as "The Last Straw".(Explained further below).

c. The Employee must immediately or soon afterwards resign his/her appointment in reaction to the action of the Employer. The resignation must be clearly stated to be as a result of the action of the Employer, not merely an "I don't want to work here no more". Under the new Rules, the Employee must raise a Grievance even after resigning, asking that the Employers take action in considering his/her Grievance. If they fail to consider this within 28 days then a Claim can then be made to the Tribunal, if the Grievance is not raised, then The Tribunal may treat your Claim as having been filed prematurely and this usually happens after the Time Limits have then passed, so be very careful here- as always get advice!

To restate the point, Grievance procedure is now mandatory by Law, so even if your Employer doesn't have one, the Law provides for this and it has to be followed.d. The Employee must not do anything that shows that he/she accepts the action of the Employer, either by doing nothing or continuing to work even under protest. The reaction of the employee must clearly be that he/she finds the action unacceptable and that he/she believes that the Contract has been terminated by the Employer -by its conduct.

The circumstances in which an Employee can treat him/herself as having been constructively dismissed differ from case to case, but the basic points listed above are fundamental guides. A very serious word of warning- this is one of the most difficult Claims to prove in Employment Law, because the circumstances giving rise to an argument about Constructive Dismissal are usually quite emotive and often happen on the spur of the moment and on many occasions the communication by the Employee that he can no longer work for the Employer is by word of mouth and thus has to be put to proof in the Witness box. In addition the rules are so fluid its a diligent Lawyers nightmare and the lazy Lawyers comfort claim. Frankly If you believe your Employer has been guilty of discrimination, which in itself amounts to a fundamental breach of contract, you may be advised to file a Claim for Sex, Race or Disability Discrimination, because these do not require you to resign before they can be brought. In addition be warned you can only get damages for Injury to feelings if you bring a Claim for discrimination. All you're going to get for Unfair Dismissal is provable Financial loss as decided in Dunnachie v Kingston [2004] IRLR 727. I happen to have learnt this the hard way in that in a case I appeared in 2003/2004, the Law changed thrice in this regard within 6 months following Dunnachie , firstly with the Employment Tribunal saying you could get damages for Injury to feelings on Dismissal Claim, (following a case called Johnson v Unisys), the Employment Appeal Tribunal saying you couldn't , then the Court of Appeal once again saying you could and then the House of Lords saying finally that you couldn't. Save the expletives, I used up all that were available at the time.The moral of the story again is always get advice where possible, many a good claim has fallen simply because one of the many complex rules that guide the so-called Layman's bastion- The Employment Tribunal stand in the way.

A last word on the Last Straw, as said a series of incidents of breach by an Employer may all be linked up even if the earlier breaches were outside the time limits set by the Tribunal i.e 3 months., if the last is within time. I have however appeared in an Appeal which was finally determined in the Court of Appeal, which was to the effect that even if the act constituting the last straw was ambiguous in effect, once there had been established serious breaches previously, the Tribunal would still be entitled to hear the matter and decide if unfair. Now I till today do not agree with this decision in that it flies against all the prescriprtions laid down by Law as to time limits, whatever I feel however, its now the Law. Hopefully, someone will take the point to the House of Lords, where hopefully things shall be clarified.

© Edward Keazor

Gilian Gibbons

The case of Gillian Gibbons reminds me of an incident which happened in Nigeria, about eight years ago.

A young Christian man resident in Kano in the heart of Nigeria's Muslim North got into an argument with a Muslim neighbour- as neighbours do all over the world- the Muslim neighbour whilst having considered the most effective way to retaliate, raised the alarum accusing the young Christian chap of having used pages of the Quran in place of Andrex for the err..purpose of ablutions. Anyway, the young Christian man promptly received mob justicep he was beheaded. No questions asked, no quarters given.

It didn't end there, the mob then proceeded on a rampage round town killing, maiming and impaling any man-jack remotely identifiable as Christian. This was not the first time this had happened, the history of Kano and indeed the North of Nigeria being replete with such incidents. I will never forget looking through the windows of the Coca Cola Offices in Kano where I was engaged in a Consultancy Project when the religious riot started and witnessed the mob swarming all over a pregnant Christian woman and hacking her to pieces, my pleas to my colleagues for us to go out and help were met with the simple warning that if the mob now a couple of thousand strong even had any idea of our being there, they would burn the building down and probably behead us all if we managed to survive the fire.

Gillian Gibbon's case thus touched a nerve with me, because of the similarities. A disagreement between a Secretary and the Director, a false and malicious report based on Religious sentiment and an innocent woman is put in mortal danger. The fact is that at least Gillian Gibbon had the benefit of a"Trial", public outcry and Governmental intervention, thousands of natives of Darfur were not so lucky, also thousands of innocent men, women and children who have lost their lives to mob action from savage, fanatic morons.

I am extremely glad that there was an almost universal outcry from British Muslims, my sadness being that this gives fodder to Nick Griffin's equally deranged hordes. They'll probably be licking their lips at the opportunity this gives them to bleat louder, well same meat different gravy, the BNP and their ilk are of the same stock as the fanatics, all it takes is a sympathetic Government and there you have it.

Adieu Billy Whizz

Its been said that Football is a game of gentlemen played by Ruffians and that Rugby is a game of Ruffians played by gentlemen.

Last weekend hosted the last competitive performance for one of the true heroes/all-time greats of British Sport and indeed Rugby- Jason Robinson.

Robinson was nicknamed "Billy Whizz" -after the fleet-footed Beano comic character- for his blistering runs/sheer speed on the Rugby pitch. He will also be fondly remembered as one of the most committed, determined, accomplished and brave men to grace the Rugby pitch- of all time.

Robinson was born in Leeds in 1974 and started his career at Hunslet a South Leeds team and inspite of having been offered a contract by Leeds, stuck with his Hunslet, later joining Wigan in the Rugby League, winning the Rugby League Cup whilst there. Robinson was to make history by his successful transition to Rugby Union on joining Sale Sharks in November 2000.

He first played Union for England in February 2001, as a substitute agains Italy, having previously played Rugby League for England, being only the second man in history to have played at International level under both codes. He was also selected for the British Lions tour of 2001, scoring a memorable try against Australia in the 29-13 win, in which he completely outsprinted and outfoxed Australian fullback- Chris Latham. http://www.youtube.com/watch?v=OH7nIZ1e0u0

Robinson's greatest moment in my view was his try in the Rugby World Cup 2003 final against Australia, of which he displayed his remarkable strength and speed in scoring what in my view was the most important try of the tournament judging by the narrow point lead by which England won the match and by extension the tournament.

Robinson also captained England in the 2003 Internationals, he was however at the helm in what was England's worst Six-Nations performance in 2005. He eventually retired from the International game in September 2005, to spend time with his family but came back to be part of the British Lions Tour and indeed the 2007 Rugby World Cup.

I will also cite his performace, injury and recovery at this World Cup as another of his greatest moments. Robinson was injured during the whitewash defeat by South Africa, with a severe Hamstring Injury only to recover and return for the Quarter-finals and play a part in the final, which performance by the team was exemplary of the conduct exhibited by Robinson throughout his career- sheer guts, determination, discipline and courage.

In his personal life he had initially been subject to the scourge of Rugby players- i.e Drink and women, but eventually became a born-again Christian, via the influence of his ex-Wigan team-mate - Va'iaga Tuigamala, a change that certainly extended his career. A consummate family-man, Robinson always insisted on touring with his wife and children. He was awarded the MBE by the Queen in 2003 after the World Cup.

In an era of ego-inflated Footballers, Drug-charged Track-stars and Rapacious Basketballers, Robinson and several of his ilk in Rugby stands as a strong example of a great sportsman, sterling gentleman and true national hero.

I've placed a photo tribute above to a man I consider a personal inspiration.