An Employment Law Blog by a UK barrister
The most common limits increase as follows:
The new limits will come into force for dismissals (or the particular relevant event) on or after 1st February 2009. The statutory instrument with the full changes is here.
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.
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 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.
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.
From tomorrow - Monday 27th October - agency workers and those on fixed term contracts of less than three months will gain entitlement to statutory sick pay, something with which they’d previously had to live without.
Also, income support and incapacity benefit are merged and renamed Employment and Support Allowance. More details on those at the DWP here (including yet another extension of the term ‘customers’), and the full regulations concerning the SSP extension here.
Again, this isn’t employment related, but over time this blog might start to embrace (as it were) discrimination in all its forms.
On 4th November in the US voters will go to decide whether McCain or Obama will be their next president. Californians, however, will have an extra decision to make: should the Californian constitution be amended to eliminate the right of same-sex couples to marry? This would reverse the decision of the state’s supreme court which upheld gay marriage as protected by the constitution earlier this year.
To give you an idea of scale, in the UK there were around 16,000 civil partnerships in 2006, which has settled down to an annual figure of around half that number. UCLA forecast that in California, on the other hand, in the next three year period there may be as many 100,000 gay marriage ceremonies if they remain lawful. Many of these will be pilgrims from other American states.
Whereas UK citizens can detach themselves from the presidential race, California is certainly the largest, most liberally progressive and media driven jurisdiction to have a referendum on gay marriage. Since referenda are rare in the UK some might argue our laws are watered down. There was no opposition of much substance to the introduction of civil partnerships, but this may well be because the government didn’t want the public debate that the word ‘marriage’ brings. Would our debate have been so polarised? The universal applicability of the topic to any western nation makes it harder to dismiss the Californian debate as inextricably American - it could happen here.
For a flavour of the debate so far, and to see the energy and importance of this vote to many of California’s LGB community, visit the site of blogger Sapphocrat at her Lavender Newswire. Her output is prodigious (there is at least one long post each day) with a recent and evocative one being a YouTube montage of a selection of the rapists, paedophiles and serial killers allowed a (heterosexual) marriage in prison. The point is clear: if them, why not us? She also tries to counter what she sees as the lies told by the Yes campaign, which a visit to its website predictably and depressingly confirms amount to “your kids will get gayed up at school”.
The official No on 8 gives a less personalised view of the battle than the Lavender Newswire - and the sponsors of Proposition 8 and its official Yes campaign can be found here. Look and decide for yourself.
Oddly enough I have (according to Google, which must surely discount visits from its own robots) a small handful of readers in California - although I can’t think what could possibly interest them here. If you do have a vote on Proposition 8, and you’re reading this, then look at how much Sapphocrat cares about the result. If you’re a Yes voter, then make sure you remember you’re dealing with thousands of real people’s happiness - not just your own proclivities.
It has been widely assumed, and advised, that Last In, First Out (LIFO) was no longer a permissible means of selecting employees to be made redundant, as it offends against age discrimination legislation. Prior to 2006 LIFO was the only formulaic and arbitrary selection method which was acceptable for unfair dismissal purposes, and many lamented its passing. LIFO will usually effect younger employees adversely - it is impossible for a 21 year old to have accrued ten years of service, compared with his 51 year old colleague.
Similar considerations attach to the commonly-seen factor in a selection matrix - length of service.
These issues have finally been touched on in a reported case - Rolls Royce Plc v UNITE the Union [2008] EWHC 2420, although only lightly. Indirect age discrimination is of course capable of being justified, if the employer can demonstrate it to be a ‘proportionate means of achieving a legitimate aim’. In this case Rolls Royce sought to depart from a collective agreement with UNITE that included length of service as a selection factor by arguing it was unlawful. The court found that:
The Collective Agreements represent a compromise between them. It is in both parties’ interests that a redundancy exercise, if such is needed, is carried out in a way which is perceived as fair and can be executed “peaceably”. In my Judgment, this is a legitimate business aim. It is an aspect of a “legitimate business policy” within the meaning of Article 6 of the Directive. The fact that the parties have achieved a peaceable transition following redundancy does not necessarily mean that Rolls Royce have achieved their defined business aim, although it seems to me that length of service is likely to be a fair indicator of both loyalty and experience which might not be fully taken account of in the measurement process … It seems to me that the parties have adopted a scheme which enables the employer to succeed in a defence to an age discrimination claim under Regulation 3: the legitimate aim is the advancement of an employment policy which achieves a peaceable process of selection agreed with the recognised Union. The criterion of length of service respects the loyalty and experience of the older workforce and protects the older employees from being put onto the labour market at a time when they are particularly likely to find alternative employment hard to find.
However:
Had the Court been concerned with a Scheme which was LIFO alone then that might be objectionable
So large negotiated compromises may well be able to cross the hurdle of justification. But what does this mean for the small employer? Is LIFO completely forbidden? Usually, but not always. To bring a claim of age discrimination, it is not enough to show that the means of selection were discriminatory, it must also be shown that the Claimant has suffered a detriment as a result. So if I have two 35 year old members of staff, one of whom has five years’ service and the other 18 months, using LIFO, or length of service as a factor in selection, may well still be acceptable. This might even go so far as to benefit larger pools for selection where the age difference is very small (a couple of years) and the various lengths of service of a similar duration.
Some of the papers carry the story today of Edward Johnson, whose nuerofibromatosis means his face is covered in small harmless tumours. He has apparently been to over 80 job interviews and been rejected, he believes on the grounds that his disfigurement makes employers uncomfortable.
Employers should always remember that severe disfigurements are taken to fall within the Disability Discrimination Act 1995, notwithstanding that they might not meet its other requirements. Employers would therefore directly discriminate contrary to the law if they chose not to hire Mr Johnson because of the way he looks.
Mr Johnson’s condition would appear to have no other effect than cosmetic - compare it with the case of Cosgrove v Northern Ireland Ambulance Service [2006] NICA 44 where Cosgrove, on being declared unsuitable for his role as an ambulance technician due to his psoriasis, claimed he was entitled to treat the disfiguring effects of the condition as bringing it within the DDA. This was rejected - it is the disfigurement which is the disability, not the condition that causes it. There must thus, it seems, be a causal link between the disfigurement and the adverse treatment by the employer - which is abundantly present in Mr Johnson’s attempts to find a job.
The news has been full of this - new BERR Secretary Lord Mandelson (go on, admit you missed him) was reported to be reconsidering the government’s previous announcement in November that the right to apply for flexible working would be extended to all employees who cared for children under the age of 16. Currently the right only exists for carers of children aged under six, a registered disabled child under 18, or (in certain circumstances) a vulnerable person of any age.
Even back in May the CBI said that they strongly opposed reform:
“Now is not the time to be placing extra burdens on British business, and people increasingly see this. We already have one of the most generous flexible working systems in Europe, and the Government is already committed to giving more parents the right to request flexible working. Any plans that would hamper our companies as they compete in the global economy should concern us all.”
…so we can’t expect their opposition to be any less strong now that we are officially in a recession. Small businesses in particular record their dissatisfaction with flexible working, as they feel any absence by employees during their core hours has the potential to cause greater problems as there are often no other staff to cover. By contrast the Chief Executive of the Equality & Human Rights Commission said, in response to Mandelson’s comments:
Genuinely flexible working is part of the solution, not part of the problem. Flexibility provides business opportunities to deal with turbulent times.
The EHRC is disappointed to see the old-fashioned argument being made that flexibility has to be a burden, instead of a potential way to increase productivity in Britain. It need not be a business cost. It can be a business opportunity.
For what my opinion’s worth, the most worrying factor to small businesses is the belief that they have to grant all applications for flexible working. This is contributed to by there being no freestanding remedy for refusing an application, unless the refusal constitutes indirect discrimination. This leads to a lack of certainly for an employer to assess his obligations.
