Who Would Be An Employer? Perhaps They Just Can’t Win.

Who Would Be An Employer? Perhaps They Just Can’t Win.

Since 1977, before my present incarnation as a Notary, I was a Solicitor and I worked in many areas of the Law. But one of them, I steered well clear of. That being Employment Law.

Frankly, I have never understood Employment Law. And in making that admission, and breaking the golden rule “Never admit, Never explain” you can see why I have retired as a Solicitor.

With Employment Law, even its basic principles have always seemed to me to be contrary to common sense and fairness. And then each new judgment of the Tribunals seems as likely as not to reverse the decisions made previously.

Perhaps someone among my readers may be a lawyer practicing in Employment matters, who takes a different view – please get in touch!

Here is a case from last month. Mohamud v Morrison Supermarkets Link Here.

A chap Mr M goes into a Morrison’s petrol station with a USB stick and asks whether it would be possible for a document to be printed off for him. Quite why he thought this was likely I do not know, maybe that’s what happens in Birmingham. At any rate it didn’t happen that day.

The employee of Morrison’s who was manning the petrol station – Mr Khan – shouted and swore at Mr M, chased after him, knocked him down and kicked him. A very serious assault. Unprovoked and, as far as one can see from the evidence, quite out of character on the part of Mr Khan.

The speculation is that the motive for the assault was racial. Perhaps Mr Khan does not like Somali people. If so, he had not mentioned this to Morrison’s.

By which I mean, there is no way that Morrison’s could have realised that this was the way Mr Khan was likely to deal with their customer Mr M. Or with any of their customers.

So who is liable to pay compensation to Mr M? Mr Khan obviously but he seems to have lost his job. Surely not Morrison’s, what should they have done to avoid this, apart from not employing any people? But oh, according to the Supreme Court, yes, Morrison’s have to pay. Never mind that the behaviour was a “gross abuse of his position” – Morrison’s “should justly be held responsible for (the consequences of) their employee’s abuse of it”

OK, really?

Yebbut, look at this from 2014, link here to Burdett v Aviva Employment Services Limited

Here is an employee who is a person with a disability. The nature of the disability is a paranoid schizophrenic illness. A consequence of his disability was a tendency to assault his work colleagues. Sexually, in the case of female colleagues and also in respect of a female independent contractor to his employers.

In order no doubt to stop any chance of further assaults happening, the employers had him arrested. Thereafter he was detained into secure psychiatric care.

His employers did not, as I think many would have, simply write him a letter to tell him he was dismissed. In fact they implemented a disciplinary process and only after receiving detailed medical evidence and evidence that there had been sexual assaults committed in the past, not revealed at job interview, did they dismiss him for gross misconduct.

Their point surely is that an employer cannot put its female employees at risk of sexual assault by continuing to employ a person who behaves in that way when he does not take his medication. If they did, what would be their defence when a female employee sues them for compensation after the next wholly predictable assault?

So, the employers did the right thing surely? Just like Morrison’s, they would be held responsible if an employee turned rogue and started hurting people. After all, Morrison’s had no idea that might happen, and they were made to pay.

You guessed it, the employers were found to have dismissed this man on the basis of discrimination arising from his disability. And that’s illegal.

So have I got this right: if an employee sexually assaults his colleagues because he just likes doing it, that’s one thing.

But if he does it because he is suffering from a dangerous psychiatric illness, it is illegal to sack him forthwith? I see. OK.

Yebbut again, back to Morrison’s.

Can they actually sack Mr Khan forthwith for his tendency to beat and kick their customers half to death just because he thinks they look unacceptably foreign?

Or, on the basis of Burdett , do Morrison’s now have to consider alternative positions within the organisation where Mr Khan’s talents can be allowed to blossom?

I wonder, is there any position in a supermarket where a disposition to racial violence could be considered to be an asset? At any rate, I hope they keep him away from the butchery, or just knives generally. Or perhaps it will be ok to sack him if he is not mentally ill, just a nasty piece of work?

As I said, Employment Law. To me, it’s crazy. And as the saying goes, just when you think you’ve reached the bottom of its craziness, you find there’s a crazy underground garage.

Time for this week’s song. You guessed it. Link here

As ever, Please do contact me and Louise whenever you need Notarial certification or Legalisation – at http://www.atkinsonnotary.com or phone me on 0113 816 0116 (internationally 0044 113 8160116)

 

 

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