P & O Ferries, John Lansdown & Employment Rights in 2022

https://news.sky.com/story/only-seafarer-to-turn-down-p-o-payoff-following-mass-sackings-wins-claim-for-unfair-dismissal-12708556

The eagle eyed of you may have noticed last month that myself and Victoria were involved in the case of John Lansdown and his claim against P & O Ferries.?

John kindly gave us a thank you shout out in his statement to Sky news. This doesn’t often happen as most outcomes remain confidential.

I didn’t comment on this case at the time because John had received a lot of media attention and was making a lot of his own comments on the issues at hand.?

It seems the right time now however to give my view as a legal representative involved directly with John and also as someone who has seen the effects on claimants like John generally over the years of what I call the “buy out” culture.

What do I mean by “buy out” culture??Put simply, although employee rights are protected by a raft of legislation in this country, the reality is that employers are almost always able to buy their way out of their responsibilities, if the price is right.?What that price is varies per individual and matter.

Employment law claims are limited in value in most cases.?For example, in the case of ordinary unfair dismissal we are able to calculate the maximum award available to a claimant almost at the outset of any dispute or claim.

Awards mainly consist of: -

1.??????Basic award – which is a basic calculation taking into account length of service, gross weekly pay amount (capped) and an age multiplier. (The same as Statutory Redundancy Pay calculation).

2.??????Compensatory Award – loss of earnings for one year (or a capped amount currently of ￡93,878) whichever is LOWER.?Any monies earned in a new role during that time are also deducted from the claim value

3.??????Expenses, basic loss of statutory rights award (circa ￡500) etc.

In the case of a failure to collectively consult (as in the P & O case) an additional award a tribunal can make is “up to 90 days’ pay” per employee.

When employers seek to dismiss individuals, most will initially speak to HR and/or their lawyers and calculate their risk in the event of a claim and in most cases will be advised to consider a settlement agreement as an alternative if a risk is anticipated.

A settlement agreement (formally a compromise agreement) is normally presented on a without prejudice basis and circumvents the need for a formal process.?The employee is offered a sum of money and contribution to legal fees, often an agreed reference/ announcement, sometimes outplacement and in return waives all rights to claim against the employer. Agreements are normally confidential and include a non-derogatory comment obligation which is reciprocal

Don’t get me wrong, Im all for a speedy and clean resolution to matters where both parties benefit and often this is a good way to avoid protracted litigation which is almost always unhealthy and expensive for both parties.

This has led to the situation however whereby when an employee is treated abysmally by an employer and wants to call out the behaviour they are not encouraged to do so.

Firstly, as a solicitor who has advised employees on many agreements in the last 20 years, I see it as my role to spell out clearly what the employee stands to gain from litigation as opposed to taking a settlement.

This involves the calculation of awards (as above) but also careful consideration of costs if they wish to be represented and are not insured.?It also looks at the timescales that litigation in 2022 will involve.?Dependant on the area of the UK your claim will be heard this can be anything from a year to some areas listing in 2024 (I’m reliably told).

The average salary in the UK is ￡613 a week, ￡2,656 a month, or ￡31,876 a year according to ONS and HMRC.

The costs of presenting a claim will be around 10k plus VAT (average) if an employee is represented to a final 2 day hearing.

The claim may not be heard for over 12 months.

In most cases then we look at what is the benefit to presenting a claim even if the behaviour is poor when presented with say an offer of ￡15k (gross) payable within 14 days? No legal costs.

The phrase a bird in the hand is often used in these discussions.

Add into the mix that even if the employee is insured to bring the claim the insurer will normally reserve the right to cease representation in the event that a “reasonable” offer of settlement is made.

Long story short, there isn’t a benefit of the going through the claims system as it currently stands for many individuals when presented with a financial settlement at around 50-70% claim value.

We are told by the media that all but one of the P & O workers chose not to pursue a claim.

Given the above situation who can blame them given the alleged lack of support from their union.

So why didn’t John Lansdown let it lie??

John pursued his matter on principle because he wanted someone to be held accountable.

Virtually all settlements are without admission of liability and P & O were liable.

John is not a greedy man and as you will see from the article donated all of his settlement monies to a worthy cause – the entirety of the settlement.

His case was based on exposing the unfairness in the system and obtaining an admission of liability alongside calling out openly the unions and querying their role going forward.?For someone who had paid into the union from early in his career it was unacceptable to him that the organisation, he had hoped would protect him, did not do so and it made him query the role of the union in 2022.

For many it also calls into debate whether our laws and systems as they are currently functioning do ultimately protect workers.

As far I am concerned the system needs review.?I don’t have all the ideas for reform by any means but here are some of my ideas: -

My view (which is strictly my own) is that meaningful pre-action mediation is the way forward. I would say that being a workplace mediator but let me tell you why.

ACAS Early Conciliation is a great tool, but my experience is that getting parties in a room together helps resolve matters faster and more effectively.?For many this is a box ticking exercise pre claim now.?ACAS are brilliant but they can’t advise the parties and it’s an at length transaction.?

Many people who have lost their jobs can’t afford legal advice.?Law centres are closed, and the CAB are at capacity.?I recently helped set up an employment litigant in person scheme (ELIPS) in Leeds with this in mind and the take up of this by unrepresented parties (mainly claimants) demonstrates how much help is needed.

Pre claim mediation may well cut down the number of claims progressing or at least narrow the issues.

Failure to communicate and mass dismissals have far reaching effects on employees often leading to serious mental health problems. This impacts other public sectors and often means longer term unemployment for a lot of claimants – they can’t move on.

I’ve seen mediation work in family law matters so why not employment?

Alternatively, we could increase the price of “buying out” poor behaviour.?Make employers think twice or three times about their conduct or in certain circumstances impose a penalty high enough to discourage these behaviours.?In this case circumventing the union and consultation obligations.

The respondents who benefit or go down this route seem to be the larger and wealthier employers.

It seems ridiculous to me that many employers are more worried about data breach fines from the ICO than they are about employment tribunal litigation and ultimately employee wellbeing and the impact upon their families as a result of an unfair dismissal.

P & O, are not the only company to behave in this way in the UK. This is a tale as long as my level of qualification. I’m sure they will not be the last.

So well done John for standing your ground on this.?You were able to do so and did it for the majority and not just yourself.

I think we are a long way off the changes that we need but I remain hopeful that cases like this will decrease.

I’d love to hear your comments and any ideas for change in the law that you might have. ?

Marie