As the angry mob grab their pitchforks and firebrands, seeking out bonus-grabbing politicians and bankers to lynch, Austin explains that their contracts of employment may be keeping the tribunals busy for years to come.

I gave up doing employment law a few years ago. I used to enjoy it, as when leading up to a tribunal hearing, I would have the opportunity to break off from shovelling coal into the daily locomotive of conveyancing, divorce, office management, client phone calls ya-de-ya-de ya, and get down to some proper forensic research, mastery of a point of law and marshalling of authorities for the battle for compensation. I liked the tribunal setting , which was formal but not overbearing, as I sometime still find the court. Thankfully we don’t have quite so many rasping authoritarians as before – indeed most of the sheriffs now seem to be folk I went to university with. I recall one day at Hamilton some years ago, the late Hamish Stirling filleting various local agents, including shouting at one for chewing gum. When my turn came, I must have betrayed a hesitancy to which he jovially reassured me: “Please continue Mr. Lafferty. I’m not an ogre you know!” Aye right…

But I closed down my employment arm of practice – not because of any bad results, but as I recognised that you need to be either a full-time employment lawyer or at least a dedicated civil practitioner. I have always been a bit of a sort of traditional GP - which is now very unfashionable, though at least I don’t need to make myself redundant because conveyancing has gone to hell. My decision was made easier when they changed the procedural rules for tribunal applications and cases, so that now if you don’t complete the ET1 properly, your children are forfeit and your right temple is heat-branded with a P45 symbol. It was made worse by the move to, er…re-brand tribunal chairmen as employment judges.

It is a bit of a joke, or at least an irony – industrial tribunals as originally named were instituted to provide a relaxed and uncourtly forum for resolution of workplace disputes. Most working people couldn’t afford a lawyer, and why should they need one? Employment law should have been always developed as a user-friendly provision that kept right away from complex subsections, competing case authorities that debate the number of shop stewards who can dance on the end of a sewing-machine needle. But the very reason I enjoyed doing employment cases -the intellectual challenge- is the very reason that the working man is alienated from full participation.

Anyhoo, my interest in employment law is for reflection on last week's story about the bonuses demanded/earned/debated by the banking folk of the realm. Understandably, rent-a-quote politicos and pompous media commentators rail with foam-flecked outrage at the very idea of paying additional monies to employees who have either spectacularly failed in their duties or who have at best been caught in the financial crossfire as the banking behemoths wallow ever lower in the stormy global meltwater. Bonus is generally a function of success, profit, improvement.

There are two distinct things to remind ourselves of. One is that some bits of the banks actually did rather well. The currency traders of  HBOS had their best ever year, and there are plenty of desks that recorded profits of some dimension or another. So why should those loyal footsoldiers and officers be treated like the donkeys they are led by? And secondly, there is a  wee thing called the law that may be a factor.

Yes, even the slowest among you will have had the thought balloon above your head that contains the phrase Contract of Employment, followed by a “?”
I may say to you that as a self-employed person I have not had a salary as such for about 20 years. But if I did, I would be motivated to reach or indeed exceed my targets if it meant getting some more money. People work at a job for a number of reasons, but principally to pay the bills. anything that can ameliorate that process will be at the forefront of the attention curve. I can't imagine a single person employed by a company who is likely - ESPECIALLY in these uncertain times - to willingly forego what is contractually theirs. And if, in order to keep the political mob at bay management at banks cuts or curtails bonuses which are written into contracts, they will likely and rightly face a tide of tribunal applications for unfair deduction of wages.

Because it ain't the poor bloody infantry who are at fault. Gordon Brown may be right with the G word, but financial loss through globalisation is a phenomenon, it is not an inevitability. whoever is responsible for the failures of banks, unless employers can prove that individual workers were negligent, acted outwith their instructions or were otherwise wilful in their involvement in loss, I can't see how they can escape paying up. If there is then further accountability of management for the additional squander caused by bad bonus agreements, then it is rather clearly they who must carry the can - though no doubt it will for all practical purposes be you and me as per usual.

What an absolute farce, eh?

Austin