Author Archive for Usefully Employed

Unfair Dismissal - Burden of Proof

Published
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Usefully Employed
on April 21, 2008
in Discrimination, Employment Tribunal, Solicitors and Unfair Dismissal
. 0 Comments

My earlier assurances that my blogging wouldn’t be interrupted by work have been shown to be completely hollow - over two weeks have passed since my last post.

And it’s not even as if there’s been nothing to report. Favourite case recently must be Kuzel v Roche Products Ltd which talks of the burden of proof in Unfair Dismissal cases. Generally in law the person advancing a case, eg you saying that your neighbour cut down your hedge, the state saying you murdered him in retaliation, has the burden of proving the allegation. Not so in unfair dismissal. S.98(1) ERA 1996 moves the burden on to the employer. So if I say “you sacked me for an absolutely bloody stupid reason” then my employer doesn’t have to disprove my version of events to oppose the claim, they have to come up with their own valid reason for my dismissal and prove that. The reasons I advanced don’t really come into it.

In this case however the employee had advanced whistleblowing (protected disclosure) as the reason for her dismissal. It’s obvious why she would make sure she did this if she thought she might have a shout - whistleblowing claims aren’t subject to the financial limits of normal unfair dismissal and include an award for injury to feelings. The employer ran some taking-the-piss SOSR defence about the relationship having broken down. The tribunal stuck two fingers up at everyone by finding that dismissal was for a third reason, against the pleadings of both parties. The consequence for the simple unfair dismissal claim is obvious - it succeeds as the potentially fair reason advanced by the employer was not found to be proved. The odd consequence is for the whistleblowing claim - where does the burden of proof lie? Traditionally it should be at the employee’s door, it’s her case and her allegations. The statute is largely silent on the issue, the reversal of the burden of proof only seeming to explicitly apply to the reason actually advanced by the employer to be the reason for the dismissal. Well for once we’ve some useful guidance, produced by the EAT and approved by the Court of Appeal:

  1. Has the employee shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?
  2. If so, has the employer proved his reason for dismissal? Failure to do so will render the dismissal unfair, and then coupled with a primia facie case from the employer will entitle the tribuanl to infer that the employee’s stated reasons are correct.
  3. Has the employer disproved the reasons advanced by the employee? Even if the employer has failed to prove it’s own reason for the dismissal it may still have disproved that of the employee.
  4. If not, dismissal is for the reasons stated by the employee. It is not however, at any stagae, for the employee to prove her reason.

I’ve mucked around with the above to apply generally.

The Court of Appeal seem to have taken the line that this case is one for minority interest, stating that it shows how worked up lawyers can get about something like the burden of proof. I agree, but not with their observation that this sort of case will be rare. Protected disclosures are often presented in conjunction with a general claim for unfair dismissal, and its similarity to a discrimination claim may well mean that the facts coincide with the parties having fallen out generally. The unfair dismissal might well then often succeed without the whistleblowing. The same can be said about maternity-related dismissals.

 

Usefully (Self)-Employed

Published
by
Usefully Employed
on April 5, 2008
in Usefully Employed
. 5 Comments

I have now started pupillage. It’s early days, but it seems as though it was the right decision.

In deference to the quality blogs and other sites out there that talk about pupillage, and (I admit) because it makes me a little nervous, I shan’t be blogging about what it’s like. In tribute to the good old days of BabyBarista however, the barristers I’ve met so far I’d describe as WheelerDealer, AlFresco, RichCynic and SwearBox. Now that’s my last word on the subject.

Law in the 21st Century

Published
by
Usefully Employed
on March 26, 2008
in Employment Tribunal, Lawyers, Rambling and Solicitors
. 4 Comments

The Law21 blog, and this post in particular, should be compulsory reading for any member of the British legal profession. The focus on new provision of legal services tends to concentrate on work for individuals - divorces, probate, and so on. In employment law circles however the change is already happening. First Assist, Peninsula, Croner Consulting, EEF and the rest are hardly household names but between them conduct a huge part of Respondents’ litigation in the tribunals.

Many employers simply want to pay an annual premium and be insured against any claims they receive. Any large employer, even if it is well behaved, will receive a claim one day,  and fewer and fewer of these are farmed out to traditional law firms and counsel. If you are a commercial company who has sold an insurance policy then it makes much more financial sense to hire staff yourselves to conduct litigation and advocacy than to farm it out. Why? Because you retain the profit margin. Without any SRA or Bar Council regulation you can also be ultra-competitive in your hourly rates which means you achieve a better loss ratio for the insurance company.

Counsel still have their place for complex cases, or for where you simply must have a bum sat on a tribunal seat somewhere far away at very short notice, but as the Law21 blog notes: traditional law firms must forge alliances with the larger providers if they are to retain the work.

Employment is ahead of the game as tribunals don’t require a special right of audience, and (insured) work can therefore be undertaken by companies without any form of regulation at all. Once Alternative Business Structures and “soft-touch” regulation comes then all manner of commercial legal areas will go the same way, and it’ll be sink or swim for law firms and lawyers. Being legally qualified will be no guarantee of a place in the new order.

Affirmative Inaction

Published
by
Usefully Employed
on March 19, 2008
in Discrimination
. 0 Comments

This is an interesting viewpoint (by Brian Cox on the Guardian’s Comment is Free site) on discrimination and “affirmative action” - a name I don’t like, although the term “positive discrimination” is no better.

It highlights the issue of what exactly we are trying to achieve with our discrimination legislation. Those in the private sector can’t use race as a characteristic when recruiting, and few would disagree with this. In the public sector it goes further than this: with race, for example, there is a duty on public sector employers to take steps to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups.

But how do you measure the results? What, from a concrete view, are you trying to achieve? The logic often used is that you should simply look at employment figures. If all our public sector employees are white, then surely there’s an impediment to ethnic minorities becoming civil servants. The shortcomings of this simplistic analysis are shown by looking at some extremes. Let’s take Leicester - one of the UK’s most diverse cities. Of its 280,000 inhabitants over 100,000 are non-white. Leicester is on target to be a city where whites form an ethnic minority by 2015. Its police service on the other hand has a mere 5.8% ethnic minority officers. Even allowing for the fact the constabulary covers the county as well, which will presumably be less diverse, this is a huge difference. The question is therefore why there are so few ethnic minority officers. The answer must be, as Brian Cox says, that they just don’t want to do it. Our attitudes are culturally provided, and at the risk of judging the issue by stereotypes the number of ethnic minority entrants into law, accountancy, pharmacy and other professions will be at a much higher proportion.

 So what do you want to do? Ensure equal opportunities, or modify people’s aspirations - basically social modelling? Is the latter even moral, let alone practical?

Na zdrowie!

Published
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Usefully Employed
on March 17, 2008
in Rambling, Status and Usefully Employed
. 0 Comments

It’s been a while - apologies. The reason for my absence was a holiday to Wrocław.

Wroclaw

It is a beautiful city and I recommend it to you. The trip was also my first to Eastern Europe - Prague, Krakow and their ilk may be old hat to most people but I didn’t quite know what to expect. Poland is interesting because of its relationship with the UK. Although it’s a bit OT, I thought I’d set down a few of my thoughts.

Everyone will tell you that the UK entered the war as a response to Hitler invading Poland, yet how we acquitted ourselves afterwards is far less noble. During the war over six million Poles lost their lives. When we look at our own experience of WWII with misty eyes, consider the experience of anyone unfortunate enough to be sandwiched between Nazi Germany on one side, and Joe Stalin on the other. In Germany’s possession for over a century before Hitler came to power, Wrocław under the Nazis underwent ethnic cleansing of almost all its Jews and and many of its ethnic Poles. In 1945 its German commanders refused to yield to the Red Army, turning the city into an all-too-easily-beaten fortress using forced labour by citizens who were shot as deserters if they refused to help with fortifications, or tried to evacuate the city. The fighting almost all took place from house to house, with both sides setting fire to whole districts. It’s not known precisely how many people died during the 82-day siege; estimates range from 40,000 to 170,000. What is known is that after 1945 the city’s population was at under a third of its pre-war level.

The view of many historians is that the UK and the USA, keen to secure agreement and peace with the Russian Army, let Poland down. The country had made the fourth-largest troop contribution to the Allied war effort, yet after the war Stalin was allowed to keep the parts of Poland he had seized in 1939, with the size of the country being “made up” by additions from subjugated Germany. This resulted in some of the largest movements of people seen in human history. Stalin was also given free rein over the post-war installation of government, producing a repressive Soviet-style communist society that wouldn’t finally crumble until 1990. Although the West can say that opposition to Stalin may have been impossible, it nonetheless had a hand in something deeply immoral.

Now Poland and the UK are affecting each other all over again - over half a million Poles have come to work here since their accession to the EU in 2004. This has been economically beneficial for Britain (oh yes it has, naysayers) and certainly beneficial for the workers themselves - the average salary in Poland is around £5,000 per annum, compared to a UK minimum wage of around £11,000 for full time work. If you live in a city I’ll bet you don’t live more than ten minutes drive from a Polish delicatessen, and certainly where I live huge old-fashioned analogue satellite dishes have appeared on the front of houses, with ‘PolSat’ emblazoned across the centre.

The economic consequences to Poland’s own infrastructure have been far less rosy - if a Wrocławian wants an operation he’ll have to wait a long time; around a fifth of the city’s doctors move away to work in other European health services. All over the city, a “brain drain” is occurring, with young Poles finding the wonderful Gothic architecture and beautiful cobbled streets a poor choice compared to quadrupling their pay packet and seeing the world. Britain’s economy has outperformed most other Western countries due largely to its Eastern European workers, but once again we’ve taken a lot away from those left behind.

Poles are now changing the UK employment law scene too. Were it not for the Polish pickers, packers, pluckers and plumbers the pool of potential agency workers would never have been there to force the evolution of this area of law. As I’ve previously said, rights for agency workers are a real political hot potato, with unions and employers’ federations dead set against one another on the importance of the flexibility that our agency-working Europeans provide. Now that many newspapers have revealed the influx of Poles has either decreased or that they’re even leaving, it may be that the Poles depart having made a lasting impression on even my obscure sphere of operation - employment law. So now I urge you to go and spend some of your hard-earned cash seeing beautiful Wrocław, you won’t regret it, and you’ll be paying them something back.

Oh, and if you were wondering, it’s pronounced Vrotswav. Roll the r.

Sex Discrimination & IVF

Published
by
Usefully Employed
on March 5, 2008
in Discrimination and Family Friendly Rights
. 0 Comments

Head of Legal gives some interesting commentary on an ECJ case which states that adverse treatment of a woman undergoing IVF treatment constitutes discrimination contrary to the Equal Treatment Directive - Mayr v Flöckner.

I won’t repeat what HoL says, either about the facts or the rationale of the decision, as I think he hits the nail on the head. IVF has been differentiated from simple pregnancy-related sickness, and this must be right. IVF can nowadays be seen as an integral part of the process itself for many women - curtail an employee’s opportunity to have it and you curtail her opportunities to become pregnant at all.

Minimum Wage Hike

Published
by
Usefully Employed
on March 5, 2008
in National Minimum Wage
. 2 Comments

From 1 October 2008, the adult minimum wage rate (for workers aged 22 or over) will increase from £5.52 to £5.73 an hour. At the same time the Youth Development Rate (for workers aged 18 to 21) will rise from £4.60 to £4.77 an hour and the minimum wage for 16-17 year olds will increase from £3.40 to £3.53 an hour.

The Low Pay Commission - an independent body which advises the government on the National Minimum Wage - has recommended ever since the inception of the NMW that the adult bracket be brought down to 21 years old. Each time they’ve been knocked back by government statistics that the Commission say actually proves their point rather nicely. From this year’s report (their emphasis):

We believe that the latest evidence reinforces our view that lowering the entitlement to the adult rate to the age of 21 will not have a detrimental impact on their employment prospects and therefore recommend again that 21 year olds should be entitled to the adult rate of the National Minimum Wage. Should the Government maintain its opposition to this proposal, we would welcome an indication of the exact nature of its opposition and a specification of what would need to change for the Government to adopt a positive approach to this recommendation.

About Me

Published
by
Usefully Employed
on February 27, 2008
in Usefully Employed
. 3 Comments

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.

Camp banter

Published
by
Usefully Employed
on February 26, 2008
in Discrimination
. 0 Comments

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.

Agency Workers

Published
by
Usefully Employed
on February 6, 2008
in Status and Unfair Dismissal
. 0 Comments

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.