Monthly Archive for November, 2008

Equality Bill will tackle Lewisham v Malcolm

Published
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Usefully Employed
on November 30, 2008
in Discrimination
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The government has started consultation on redefining disability discrimination to overcome the destructive judgment in Lewisham v Malcolm. In a sensible move, disability discrimination will borrow the concept of indirect discrimination from other discrimination law. As the consultation document proposes:

[the Bill shall] adopt the concept of indirect discrimination for the purposes of the disability discrimination provisions in the Equality Bill, rather than carry forward to the Equality Bill the existing provisions in the Disability Discrimination Act 1995 that apply to disability-related discrimination. Once a prima facie case of indirect discrimination has been made, it will be possible for the person who imposed the provision, criterion or practice to show that it was objectively justified to defeat the claim; and

introduce a requirement that those people and organisations that are under a duty to make reasonable adjustments for disabled people must make any reasonable adjustment that the Equality Bill will require them to make before they can seek to justify indirect discrimination.

Very sensible, and uncontroversial. See the full consultation document here.

But I don’t want to sack him…

Published
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Usefully Employed
on November 25, 2008
in Disciplinary, Rambling and Unfair Dismissal
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In other news this November, everyone seemed to be calling for the sacking of someone. From the social workers charged with the care of Baby P, to foolish radio presenters, dismissal has hit the headlines.

Ross & Brand

What faced the BBC with Ross & Brand was the same issue that faces many smaller employers, just on a grand scale. An employee has done something which is eminently dismissable, but the employer doesn’t want to go through with it, despite pressure to act. A more stereotyped example of such a conflict is when the most successful salesman in the company sexually harasses the receptionist and she demands his dismissal. I’ve missed the boat on this particular news story in terms of adding my comments on Brand & Ross, and like most employment pundits won’t bother because there simply isn’t a legal angle.

Actually, this is my blog, so I will stick in my two cents. I’m a bit of a channel hopper in the car, and I found it difficult to square the Today programme (together with most other media) saying that there was universal condemnation and outrage with Radio 1’s news presenters (10 million listeners daily) saying that almost all the people contacting that station thought the whole incident was blown out of proportion. The silent majority isn’t always who you think it is.

Baby P

Not long after the tragedy came to light, I heard an interview on Radio 4 with a minister responsible for children’s services. The interviewer asked him why on earth no-one had been sacked over the incident. His response was something like “The investigation done so far has not revealed incompetence or misconduct on the part of any individual sufficient to warrant dismissal. The absolute worst thing we could do, both for morale and constructively diagnosing what went wrong and avoiding it in future, is simply find a ’sacrifical lamb’ and consider the matter resolved.” “But,” said the interviewer, “wasn’t Baby P the sacrifical lamb? Isn’t it outrageous that no-one has been held responsible?”

A meaningless and jingoistic response to an intelligent and pragmatic answer.

And finally…

Sack the Strictly Come Dancing judges. OK, perhaps not meant seriously, but dismissal seems like the first solution to trip off the tongue in any dispute. In fact, calling for someone’s sacking is often the most lazy suggestion to a difficult problem (perhaps not John Sergeant’s dancing).

The lesson here for employers is that decisions are rarely black and white. If you always capitulate to someone baying for blood, then you’ll have to justify it at the tribunal. Similarly, burying your head in the sand can get you in even worse trouble. Competing considerations can lead to bad decisions. Don’t lose your sense of proportion, or sense of purpose in running your business.

Agency workers gain employment rights

Published
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Usefully Employed
on November 25, 2008
in Contracts of Employment
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Agency workers in the UK currently have few rights, as they are not employees under employment legislation. The chief remedy from which this bars them is that of unfair dismissal - there have been some well known cases involving workers having no rights on losing a job they’ve performed for some years in a manner more or less identical to an employee. The most well known of these was perhaps Mrs Dacas; the poor woman worked for four years cleaning for Wandsworth Council, through Brook Street Bureau agency, and got absolutely nothing when she was sent packing for querying her holiday pay and an isolated incident of rudeness. No investigation, no dismissal process, no pay-off, just a withdrawal of work. It was the judgment in that case that set the cat amongst the pigeons.

Employers’ groups see the short-termist hire-and-fire nature of agency work as vital to many businesses’ flexibility and operation, whereas other groups are concerned over reports of widespread exploitation. Several attempts have been made to imply employment relationships into the traditional tripartite agency/employer/worker relationship, but they have failed. The Court of Appeal case of James leads the way, and has been applied robustly since.

Legislation is now moving to fill the gap, but only after a huge amount of negotiation at a domestic and European level. The government reached an agreement in May with the TUC and CBI that agency workers would gain equivalent rights to employees, but only after 12 weeks’ service. The problem was that rights for agency workers was an approaching storm in Europe as well, and the government managed to broker a deal where it said yes to the Agency Workers Directive, subject to the 12 week qualification, and (separately) the retention of the right of UK workers to opt out from the 48 hour working week. This latter exception for the UK - most of Europe having 48 hours as an unalterable maximum - is of great political sensitivity. The notion of a maximum working week is anathema to British employers, and I would say anecdotally many of its employees too. It just seems a bit, well, French. 

The agency worker directive presently exists only as European Law - the full copy is available here, and must be implemented by UK legislation. There is currently no word as to when this will happen.

Tips and the Minimum Wage

Published
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Usefully Employed
on November 25, 2008
in National Minimum Wage
. 0 Comments

I’ve not been around to blog for the last two or three weeks (clients come first!) Apologies, and here starts a flurry of posts bringing us up to date on employment law developments in November.

It’s been widely reported that restaurants may be compelled by legislation to reveal to their customers whether or not tips go directly to serving staff. What’s not been made so clear is the tandem proposal to remove the current provision whereby tips received by staff may count towards their national minimum wage entitlement. The BERR consultation is here, but I’ll be surprised if this doesn’t go through - reducing wages pro rata to tips received is not easily defensible given the British attitude that tips are a reward to the individual waiting staff for service beyond the average.