Archive for the 'Rambling' Category

Will the BNP hire BME employees?

Published
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on June 11, 2009
in Discrimination and Rambling
. 0 Comments

Whether or not the Race Relations Act 1976 applies to membership of political parties is uncertain, hence the British National Party’s policy of refusing entry admit non-white members continues unchallenged for the moment. The Guardian reports that this may be challened

However, as the somewhat-conflicted Daily Mail states, the main benefit that comes with its new EU Parliament members is money. And quite a bit of it too. The newspaper reports:

The far-Right British National Party will pocket £5.2million of taxpayers’ money to spread its message of hate in the European Parliament. Party leader Nick Griffin and his fellow MEP Andrew Brons will get paid more than £446,000 each in salary, office and travel allowances every year. The breakthrough will also enable them to siphon more than £147,000 each year directly into party coffers.

Of course much of this will be spent on staff, and here race discrimination legislation does come in. Indeed, there has been some noise on facebook and twitter trying to persuade well-qualified political researchers and agents who are black, or Jewish, or of any other group that Griffin doesn’t like, to polish up their CVs to see how their qualifications and skills compare to people he’ll actually hire. That way some of the BNP’s public funding could be redistributed via the employment tribunal system…

The Rule of Law

Published
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on June 10, 2009
in Rambling
. 0 Comments

Charon QC references an article in the Law Gazette talking of a speech given by Lord Phillips on the rule of law.

The rule of law is a concept poorly understood by most in our country, yet it underpins our constitution and civil liberties.

Please read Charon’s excellent post. Lord Phillips, of course, couldn’t help but refer back to Harriet Harman’s evocation of the dreaded Court of Public Opinion…

Daniel Barnett reaches milestone

Published
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on April 23, 2009
in Lawyers, Rambling and Usefully Employed
. 0 Comments

Part of the lack of updates to this blog recently means I’m late reporting on a true employment law internet luminary reaching a real milestone. Daniel Barnett, barrister at 1 Temple Gardens, has been sending email employment law bulletins to just about everyone in the industry, from barristers to CIPD students, for ten years. And 1999 was a looong time ago in the IT world. Most of you, dear readers, may well not have even had an email address for him to write to.

To celebrate his anniversary Daniel launched a charity appeal to try to raise £10,000 for the Starlight Foundation. He’s achieved it in a very short space of time, but you can still donate at http://www.justgiving.com/danielbarnett2009.

Regulation of solicitors

Published
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on March 11, 2009
in Lawyers and Rambling
. 0 Comments

It’s been a common view for a while that SRA regulation:

  • is inappropriately one-size-fits-all, with the same requirements of High Street solo practices and of magic circle firms;
  • that the regulation they practice is more suited to the former.

Jordan Furlong’s Law 21 blog looks at a report produced by the Legal Services Policy Institute which contemplates complete divergence, with separate regulation on both a firm level and an individual lawyer level. This leads to the unattractive prospect of two tiers of solicitors emerging, one qualification associated with “big” law, and one for the high street sector. The latter will inevitably be stigmatised as somehow inferior, and as there huge areas of cross-over between the work of High Street and large firms (not least employment!) an unfair differentiation in perceived quality will result.  

http://www.law21.ca/2009/03/03/the-evolution-of-lawyer-regulation/

Sir Fred’s pension - protected by Human Rights?

Published
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on March 2, 2009
in Contracts of Employment and Rambling
. 18 Comments

Most lawyers felt unease as they watched Harriet Harman tell Andrew Marr that:

Sir Fred should not be counting on being £650,000 a year better off as a result of this because it’s not going to happen. The Prime Minister has said it’s not acceptable and therefore it will not be accepted. It might be enforceable in a court of law, this contract, but it’s not enforceable in the court of public opinion and that’s where the government steps in.

A video of the interview can be found here.

So what if the contract is legally binding? What if the parliament has to specially legislate to recover the money? At present the government cannot simply seize your money (or anything else) just because they want to. Lawful authority is needed. This isn’t merely an effect of new human rights legislation, it’s a fundamental part of English law. In the first-year law student case of Entick v Carrington (1765) 19 Howell’s State Trials 1030, it was said:

The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by private law, are various. Distresses, executions, forfeitures, taxes etc are all of this description; wherein every man by common consent gives up that right, for the sake of justice and the general good.

This is one of the cornerstones of the British constitution - the executive can only do what the legislature has given it lawful authority to do. So Harriet Harman taking away Sir Fred Goodwin’s pension entitlement would be the modern equivalent of Lord Halifax, himself a Secretary of State, signing an unlawful warrant to seize Entick’s seditious newspaper articles.

So will they legislate? If parliament did pass such an Act, English law falls away as parliament is supreme. This is where European human rights would surely come into play. Article 1 to the First Protocol to the European Convention on Human Rights:

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

So any Act will need to be in ‘the public interest.’ Does anyone seriously expect that the European Courts will find that it is in the public interest to retrospectively void a lawful contract to recover an economically insignificant sum of money because it doesn’t seem particularly fair that he should receive it and the public are a bit cross? 

This was an exceptionally foolish time for the government to suddenly stick its heels in, because unless Sir Fred throws in the towel the government will lose, however much it sticks in the throat. And by the time the government do lose, it’ll have had all the factual (and probably embarassing) evidence heard in court, risked adverse findings of fact over Lord Myners’ role, been to Europe, had years’ worth of newspaper headlines against it, and spent many many times Sir Fred’s pension entitlement into the bargain.

The employment law lesson here is that the government committed a basic mistake - negotiate someone’s severance all at once, because afterwards is too late…

Finally, it’s worth quoting Sir Fred’s letter in full, because no-one else seems to be doing so and it gives him more dignity that you’d imagine, whatever you might think of him.

Dear Lord Myners,
You telephoned me yesterday and asked me to consider voluntarily taking a material reduction in my pension entitlement as a “gesture” to acknowledge the level of Government support being made to Royal Bank of Scotland (RBS).
You highlighted that the absence of such a gesture would give rise to significant adverse media comment.
I outlined to you my view of the matter, but as I had not been expecting your call and as you expressly requested me to do so, I undertook to reflect on the matter again.
You emphasised that I would need to provide you with an answer ahead of the publication of the Group’s annual report and financial statements sometime next week.
It came therefore as something of a surprise to find that both details of forthcoming 2008 financial statement disclosures relating to my pension and the substance of our telephone conversation had been placed in the public domain a few hours after we spoke.
In the circumstances, I feel that an earlier response to your request is necessary, and the purpose of this letter is to provide that.
Whilst my pension is the current focus of attention, there were a number of other aspects of my departure from RBS which need to be considered at the same time, particularly in the context of “gestures” and appropriate behaviour.
My contract of employment provided for a 12 month notice period, which I voluntarily waived in October of last year.
This amounted to a loss of 1 years’ (sic) salary, and I discussed this with you at the time, when you indicated that it was both an appropriate and sufficient recognition of the circumstances.
Subsequent to this, you approached the chairman of the group remuneration committee to suggest that I should waive certain share related awards which would otherwise have vested upon my leaving the group.
Whilst difficult to value with precision, these had a value equivalent to about 3 months’ salary at that time.
During these discussions, I am told that the topic of my pension was specifically raised with you by both the chairman of the group remuneration committee, and the group chairman, and you indicated that you were aware of my entitlement, and that no further “gestures” would be required.
On this basis, I agreed to waive my entitlement to the share related awards and proceeded to subscribe for my full allocation of shares in the ensuing share issue.
Like you, I believed that these gestures were appropriate in the circumstances, and sufficient, and revisiting the position today, I believe that they remain so.
I accept responsibility for that which I was responsible for, and recognise that my actions must be consistent with this.
I believe that they have been, and to voluntarily accept a reduction in a pension entitlement which has been built up over many years and in other employments in addition to RBS, is not warranted.
It is important to recognise that my pension arrangements have not fundamentally altered since I joined the group in 1998.
Whilst the quantum of the “pension pot” figure has increased, this is principally as a result of the assumption used last year about retiring at age 60 no longer being appropriate. The amount which I am due to receive as a pension continues to be calculated in a manner consistent with prior years.
Whilst I suspect that you will not now agree with it, I hope you can understand my rationale for declining your request to voluntarily reduce my pension entitlement.
In conclusion, since our private conversation yesterday is now in the public domain, I have no objection to the complete content of this letter being made public.
Yours sincerely,
Sir Fred Goodwin

Don’t lie beyond your intellectual capacity…

Published
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on February 20, 2009
in Employment Tribunal and Rambling
. 0 Comments

One of my colleagues in chambers had a case recently where the employer claimed to have completed and issued a proforma written warning in mid-2007. The employee claimed never to have seen the document before the tribunal proceedings.

So how wonderful to arrive at the hearing of the claim, get the original document in the employer’s witness’s hands and say:

  • Did you complete this form in June 2007 Mr Smith?
  • Yes.
  • Certain?
  • Yes.
  • You didn’t fill it in afterwards?
  • Certainly not.
  • You’ll see Mr Smith that there’s some tippex on the original pre-printed date on the proforma, and you’ve written 2007.
  • Er, yes.
  • Could you just hold the document up to the light and tell me what year is pre-printed on the form?
  • [pause] 2008
  • Would you like to rethink your answer to my question on when you filled the form in?
  • Erm, I guess I could have printed a lot of 2008 forms in advance.
  • But you didn’t did you?
  • Well, no.

Surely a candidate for a litigation version of the Darwin Awards. If you’re going to perpetrate a fraud, forgery, or even just a bit of a fib, at least think it through first.

The same can be said of Lucille Hester of Dallas, who has a letter she claims to have been given in 1999 by her half-brother who died in 2002. Such a shame the letter is typed in Calibri, invented in 2003 specifically to be the default font in Office 2007, not released until 2006. Read the news report here.

Spotify

Published
by
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on February 20, 2009
in Rambling
. 2 Comments

Off topic, but I’m astounded by Spotify - all the music from most major labels streamed immediately, at no cost, and legally, to your desktop.

Try it out while it still exists!

https://www.spotify.com/en/

Will ignorance of the law become an excuse?

Published
by
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on February 10, 2009
in Dispute Resolution regulations, Employment Tribunal, Lawyers and Rambling
. 1 Comment

The recent case in which Counsel for Revenue & Customs had to apologise to the Court of Appeal for relying on regulations that were five years out of date has drawn much comment. For a report, see Frisby Law, a new blog from the firm of Ruthie, one of the UK’s founding blawgers.

Toulson LJ states:

It is a maxim that ignorance of the law is no excuse, but it is profoundly unsatisfactory if the law itself is not practically accessible. To a worryingly large extent, statutory law is not practically accessible today, even to the courts whose constitutional duty it is to interpret and enforce it. There are four principal reasons.

  1. First, the majority of legislation is secondary legislation.
  2. Secondly, the volume of legislation has increased very greatly over the last 40 years. The Law Commission’s Report on Post-Legislative Scrutiny, (2006) Law Com 302, BAILII: [2006] EWLC 302, gave some figures in Appendix C. In 2005 there were 2868 pages of new Public General Acts and approximately 13,000 pages of new Statutory Instruments, making a total well in excess of 15,000 pages (which is equivalent to over 300 pages a week) excluding European Directives and European Regulations, which were responsible for over 5,000 additional pages of legislation.
  3. Thirdly, on many subjects the legislation cannot be found in a single place, but in a patchwork of primary and secondary legislation.
  4. Fourthly, there is no comprehensive statute law database with hyperlinks which would enable an intelligent person, by using a search engine, to find out all the legislation on a particular topic.

That case concerned confiscation orders, but let’s apply the principle to employment law. Remember, if you’re an employee presenting a case in the employment tribunal you do not have recourse to any legal aid. The principle is that it is a forum in which you can represent yourself. But can you look up the law that applies to your case? The only port of call for Joe Public is the government’s own information sites, OPSI and the Statute Law Database. So our imaginary Claimant looks up the Employment Rights Act 1996, in which most of our employment laws are found. But what does he find?

 

So we have a copy of the Act, but without the last five years’ worth of updates. Indeed, the SLD version even goes straight from s98 to s99 - but as we all know this particular Act now sports a shameful ss98ZA - 98ZH, s98A and s98B. Hilariously, the dispute resolution regulations will have been introduced, failed, and been repealed without the SLD text being troubled at any point.

So the brief answer is that the unrepresented Claimant can’t do any meaningful legal research using free resources. Given the complexity of the law, the availability of costs orders where a claim is misconceived, and the unavailability of legal aid, I wonder if there are Article 6 implications. Refusal of legal aid where it is crucial to the presentation of a party’s case can constitute interference with Article 6 rights. One even has to wonder whether ignorance of the law being no excuse is compatible with our legislation being impossible to decipher. The now oft-quoted preface to Archbold 2009 states in relation to criminal law:

It has been a recurring theme of the preface to this work that there is far too much criminal legislation. The willingness of the Labour Government to continue its practice of legislating by trial and error has shown no signs of abating even in its eleventh year in office… The state of the criminal statute book is a disgrace. The Criminal Justice and Immigration Act 2008 is the usual hotchpotch of measures, with no theme, with much of the detail tucked away from close scrutiny in the schedules, and consisting in large part of textual amendment to earlier legislation. Much of the amendment is by way of undoing this Government’s earlier legislation.

This issue is a timebomb. Concerned practictioners and campaigners could do worse than visit Nick Holmes’ page for the Free Legal Web project.

Barack Obama

Published
by
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on January 21, 2009
in Rambling
. 1 Comment

I’m not American, and I’m not black, so I don’t really understand why I, like many others, felt genuinely emotional at President Obama’s inauguration. I think we all claim a piece of him - whether you’ve simply despaired at the lack of intellectualism in politics, the dynastic origin of many US politicians or simply believed in aspiration and opportunity.

It also looks as though the US’s ‘Labor Laws’ are in his sights, with hot topics like union recognition and equal pay being very near the top of his agenda. He has also promised an employee-centric focus to corporate bailouts.

A shoutout : If any US employment / labor lawyers come here, I’d love to do a collaborative comparison of our laws.

Anyway, in a touch of irreverence, celebrate the new president with the Barack Obama tongue-twister song from Radio 1. It’s harder than you think.

Working time opt-out at death’s door once more

Published
by
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on January 5, 2009
in Contracts of Employment, Rambling and Working Time Regulations
. 3 Comments

Personnel Today reports on the alarm expressed by businesses on the European Parliament’s vote to end the maximum working week opt-out. The statistics quoted are telling enough as to how its end would effect the UK workforce - around 1 in 10 employees work more than the 48 hour working week, but for more than 9 in 10 employers.

By way of reminder, a maximum working week of 48 hours applies to European workers, unless they opt-out in writing. Employees cannot be compelled to opt-out, or treated less favourably if they do not. Britain has fiercely defended its citizens’ right to opt-out, a right chosen by very few other countries.

The idea of a maximum working week is anathema to many British workers, even those who would never approach the number of hours. Although other Europeans have long used it as a method of increasing employment levels, here it is seen by many as a socialist policy and even, gulp, a bit French. Simply on a tabloid-sniggering level, the British are no fans of French working practices.

The worse thing is that the perception of a Europe exceeding its remit in a way that dictates against contractual freedom will add fuel to the fire of Euro-scepticism already so rampant in the UK. The rapporteur appointed by the Parliament to report on the measure said that the vote was an opportunity to reconnect with citizens. Indeed: and on these shores it will have the opposite result. This is a great shame, as much of the good work and benefit done by the European institutions goes unnoticed and uncelebrated. Votes such as this, especially given the absolute failure by the EU to recognise that the rejection of the EU constitution was a statement on its failure to engage with its electorate, demonstrate the arrogant blindness of European legislators. Stephen Hughes, social policy spokesman of the European Parliament Socialist Group, speaks volumes as he talks of “our European nations making a great civilization”, “British citizens [being] allowed to enjoy the civilised standards of their fellow Europeans”, compared to “Korean conditions in our factories.” He imposes a social agenda imported from other countries onto a vocally unwilling public who would hold no truck with him at home. He is also disingenuous enough to say all this, then represent the move as health & safety legislation, despite a raft of existing laws which already prevent employers working their employees until they’re so tired injury results.

Freedom of contract is central to the common law system and British working sensibilities. There may be one or two more US readers of this post than usual (thanks to Charon and Blawg Review), and this level of state intervention would (I’m guessing, and would love to be told) be absolutely unacceptable there. To them, and to many British workers, this is the European Union at its worst, and could well be looked at in many years’ time as a first development in a move away from Europe for Britain. The huge promise for peace and prosperity presented by the European institutions could be thrown away on the back of social engineering by policitians who don’t even begin to recognise how utterly disengaged they are from their electorate.

I’m not a Euro-sceptic, and don’t usually use this blog as a soapbox, but some years ago I was talking to an MEP’s agent at a barbecue and asked him what it was an MEP actually does, day-to-day. He responded by taking offence, and the incident has rankled with me ever since. Europe is a Very Good Thing, but won’t last much longer over here if it doesn’t get very smart, very fast, to how it is perceived.

Sorry everyone for the rant, the blog will be back to dry and fusty law reporting soon.