Employment law is no friend to the employer

What would you think if, after you had just bought a car, the salesman said that if you did not purchase your next car from his showroom, you would receive a further bill for £2,000? Or if your usual supermarket sent you a hefty and legally enforceable invoice if you decided to shop elsewhere?

The GP Record, by Fran Orford www.francartoons.com
The GP Record, by Fran Orford www.francartoons.com

You would be pretty miffed, I suspect.

Yet this weird situation exactly mirrors current employment law.

All of us shop around for goods and services, and change allegiance if what we purchase is not up to expectation. Yet a business can't do this with its staff. Clearly each business must remunerate staff for their time spent working there: but at present it can't terminate staff employment (other than for misconduct or illness) without paying extra redundancy money.

Clearly, staff should not be made redundant without good reason and due notice. But why should businesses have to pay extra to get rid of staff they do not want or can't afford? Not only does this make the business less efficient, but firms can be reluctant to take on extra staff because of the fear of future redundancy payments.

Equally, the law seems weighted so heavily against employers that it can seem impossible to remove poorly performing staff without incurring a financial penalty. Even in apparently clear-cut cases of staff incompetence, many businesses now say that it is cheaper to give redundancy pay rather than have the expense and worry of going to an employment tribunal.

These problems are magnified in smaller businesses, and the situation in healthcare is even worse: practices can be trapped between the legal duty to organise high-quality medical care, yet unable legally to discipline or sack staff if they are ineffectual in a diffuse way that would be difficult to prove in court.

This situation is about to get much worse. In a few months' time it will be illegal to terminate staff employment on grounds of age. How will practices cope when they can no longer rely on compulsory retirement to remove any staff who are progressively underperforming as they get older?

And as if this were not enough, another huge problem is looming - for consortia, over PCT debts and redundancies. More next week.

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