I’ve updated the About Me section on the blog. It still doesn’t give much away. Time was that I’d be the type to put up pictures, but softly softly seems the order of the day now.
Monthly Archive for February, 2008
Mr English went to a boarding school and lived in Brighton. This, perhaps with the odd camp mannerism, was enough to draw tired and predictable jokes from his workmates. His claim of harassment under the Employment Equality (Sexual Orientation) Regulations 2003 has failed, causing considerable embarrassment to both of us, as I wrongly suggested in a previous post that this sort of treatment was unlawful.
In this case Mr English wasn’t gay, no-one thought he was gay, and he knew they didn’t think he was really gay. This wasn’t enough to stop them shouting “bums to the wall” every time he walked past.* The regulations ban conduct on the “ground” of sexual orientation - this is what causes the difficulties. If you’re trying to show that I’m discriminating then you’ll have to show that my treatment was on the “ground” of sexual orientation. This means that my motivation to treat you in that way must have been sexual orientation (or my perception of it). This simply cannot be said of Mr English’s abusers, their slurs were baseless and they knew it. If they’d thought he was gay then the necessary motivation would have been there and the claim would have succeeded. Similarly, if his son, dad, dog or whatever else had been gay the claim would have succeeded too.
My one consolation is that the EAT grumble about the situation almost all the way through the judgment, and state their opinion that the regulations don’t properly implement the Equal Treatment Directive. They’ve packed the case off to the Court of Appeal, which in these circumstances is the same as you referring a troublesome customer to your manager so that the smackdown will have some authority behind it.
*I made up this detail of the case, although as a child it was a common enough cry at my school, directed at heterosexual yet gawkish pupils by bullying closeted ones. I’m not sure which category I fitted into.
A neat summary of the situation at present:
The question of whether a claimant in an unfair dismissal case is or is not an employee within the meaning of the 1996 Act is increasingly litigated before employment tribunals in unfair dismissal cases, particularly those brought by workers on the books of employment agencies. This is not surprising in view of recent developments: the length of the qualifying period for protection has been reduced to 1 year making it possible for more “temporary workers” to qualify for protection; the maximum award of compensation for unfair dismissal has been substantially increased making it more worthwhile for claims to be brought and providing employers with an additional reason for resisting claims; and, most important of all, there has been an explosion of numbers in the workforce (estimated at 1.3m) engaged to work under arrangements with employment agencies.
This case in the Court of Appeal, James v London Borough of Greenwich, has caused no end of grumbling in employment law circles at the failure of the court to lay down specific guidelines as to when an agency worker will become an employee of the end user. God knows why, previous EAT cases had made it simple enough. The hysteria that followed Dacas never made any sense - a bit of obiter chucked in that it would be possible in some cases to imply an employment contract in those circumstances wasn’t controversial.
What was controversial, when you take a step back, was the idea that this possibility was ever going to upset the statutory restriction of unfair dismissal rights to employees (unlike, for example, discrimination law), and the normal rules of interpretation of contracts.
Rights for agency workers is a real political hot potato, and change is needed, but frequent finding of employment relationships in genuine agency arrangements could cause huge economic upheaval. The courts were never going to do it lightly: they haven’t the balls, and it doesn’t make sense anyway.
… is a search term typed into Google, by which someone came across my post on PM’s diversity plaudit. Stats like this are fascinating, but frustrating too. Do they work there already? Are they thinking of applying there? Will Pinsent’s gay-friendly atmosphere be a turn-off or a turn-on?
I’ll never know, and it makes me sad.
The dispute between the Legal Services Commission (providers of what used to be known as Legal Aid) and barristers is fascinating. Read one man’s view of it here.
If you’re several thousand employees, you don’t like your new pay deal, and you go on strike, then few would argue against your right to do so. The right “to freedom of association with others, including the right to form and to join trade unions for the protection of [one's] interests” is even guaranteed by the European Convention of Human Rights. Yet, when the individuals in question are all self-employed, and are dealing with the government as their main customer, this is alleged to breach competition law. I don’t like this. Preventing a profession from campaigning against government practice is not a very laudable use of competition law. It also smacks of vendetta - the argument has to my knowledge never been used against GPs, who are in a similar negotiating position and for whom the BMA campaigns vociferously.
My own view is that the whole chaotic mess shows the government in a very poor light indeed. The disingenuous approach, which may well affect the quality of defence available to those accused of complex crimes, has to be seen against the budget they’re trying to reduce - £105 million. Seem a lot? Not when you consider that this year the Ministry of Justice spent £176 million on a computer system that they then threw in the bin because it was going to cost £900 million-odd more. Quite why barristers are seem as greedy, yet software contractors are always given a blank cheque, is a mystery to me.
You can’t stay still for very long around here - you stand round waiting for some European caselaw and two come along at once. We now have a widely reported decision on whether or not the unique feature of disability discrimination, that it only protects the disabled, as expounded by me just the other day, complies with the Equal Treatment Directive. It doesn’t of course - and associated discrimination, in this case against a non-disabled employee who had caring obligations to a disabled person, is also verboten. Once this is confirmed by the ECJ, it will mean new legislation. Obligations to make allowances for caring for vulnerable adults will coincide with the gradual extension of the right to flexible working applications, and many small employers will (rightly or otherwise) feel constrained in the way they staff their businesses.
The ruling doesn’t go so far as to say that disability discrimination need be so broad as the other forms by making, for example, the existence of any disability in anyone irrelevant to a finding of discrimination. Instead it simply says that association with a disabled person is enough to fall within the ambit of the directive.
Oh, and having originally planned after the last one never to read an AG’s opinion ever again, this one isn’t actually all that bad. I’d still find a hobby instead though if I were you.