Archive

National Equality Panel

Published
by
Usefully Employed
on September 11, 2008
in Discrimination and Rambling
. 0 Comments

I once saw written somewhere that Harriet Harman would fail the “wouldn’t mind having a pint with her in the pub” test*, and one only has to listen to her speak to see why. Hot on the heels of positive discrimination comes the institution of the National Equality Panel, announced in a speech to the TUC. It will be an academic panel, and will:

  • provide a factual analysis of how equality trends have changed over the last ten years and map out exactly where gaps have narrowed and widened in society.
  • investigate how people’s life chances are affected by gender, race, disability, age and other important aspects of inequality such as where they were born, what kind of family they were born into, where they live and their wealth; and
  • show how these factors inter-relate and reinforce one another.

…all of which will presumably inform subsequent legislation. So really it’s a commission. The interesting thing about the move is that it doesn’t choose from characteristic-based differences, such as race, sex, age and so on, but as you have just read, “aspects of inequality such as where they were born, what kind of family there were born into, where they live and their wealth.” In other words, class, and Harman’s bowdlerisation of her speech to exclude mention of the word has caused rather a row.

I am pleased with the move, as I think economic background has been left out in the battle to create equality of opportunity. Creating aspiration amongst those who have never known it is in no way exclusive to right wing politics, and I hope the panel’s report generates consensus when it is released in a year’s time.

 

 

*I am unreliably informed that Des Browne, Defence Secretary, does pass this test.

Apprenticeships

Published
by
Usefully Employed
on September 9, 2008
in Contracts of Employment, Disciplinary and Status
. 1 Comment

Apprentices aged under 19, or who are in the first year of their apprenticeships, do not qualify for the minimum wage. There has a been a de facto minimum of £80 per week for the last couple of years, simply as a matter of contract between employers and the Learning & Skills Council. Still, this isn’t much! A joint announcement by BERR and the Department for Children Schools and Families at the TUC Conference has announced that this will be increased to £95 per week. This is designed, says Ed Balls, to boost the earnings of workers such as carers and hairdressers. Apprentices in the construction industry already earn an average of around £175 per week - my opinion is that higher rates in construction are driven by labouring work being available at comparatively high pay, meaning that pay for apprentices is needed to make them attractive as set against a proper wage. The Low Pay Commission are studying whether the minimum wage exemption should be maintained.

Apprenticeships are very important to the government’s plans. They are seen to benefit school leavers by providing a career structure and a route to qualification, and of huge benefit to industry for much the same reasons, since recruitment and training is supported by government at relatively little cost to the employer. The government plans to raise the school leaving age to 18, but will include vocational training programmes such as apprenticeships. Balls further states that this will necessitate the creation of a further 150,000 apprenticeships over the next five years, which will come on top of the already impressive£1bn in funding available for these programmes.

It is difficult to argue with this policy. I always had a sense of unease over the goverment’s push in the late nineties to hugely increase the amount of students going on from school to do a degree, which had seemingly little focus on the resulting future career benefits, if indeed there were any for some. This new focus on apprenticeships, by comparison, can guide school leavers into their first job. Leaving school at 16 gives a school leaver sudden freedom of choice at a young age, and the stark difference between school and work means some of them inevitably don’t handle the change - to say that some unemployment, crime,and antisocial behaviour are possible consequences is not, I think, unreasonable. 

Download the press release here: Denham & Balls TUC Speech News Release

However, employers beware. I once dealt with an employer who had been delighted at the prospect of employing five workers for the price of one. But when they weren’t actually very productive, and required more supervision than this very small company had envisaged, the employer was shocked to be referred to the case of Flett v Matheson [2006] EWCA Civ 53. This case overturned previous authority, and held that a modern style tripartite apprenticeship was to be treated the same in law as a traditional common law apprenticeship, such as have existed for hundreds of years. The difference is important - if I wrongfully terminate an employee’s contract, I must pay him the balance of notice that I should have given him, subject to his duty to mitigate his loss by finding another job. If I wrongfully dismiss my apprentice, heads of damages bold and shocking to employment lawyers come to the fore. A contract of apprenticeship will not normally enable the employer to terminate it before its completion (save for gross misconduct, which of course is a contractual repudiation). In the Denning case of Dunk v George Waller & Son Ltd [1970] 2 All ER 630 (no link I’m afraid) it was held that damages can include diminution of future prospects, as well as loss of earnings and training for the remainder of the contract. This first head can be huge: see the operation of the principle in all its glory in this case, as an apprentice sacked three years into a four year apprenticeship was awarded £20,000 for wrongful dismissal.

Meme tag - Five non-law blogs

Published
by
Usefully Employed
on September 4, 2008
in Rambling and Usefully Employed
. 0 Comments

It came, welcomed, in the middle of the afternoon. I was glad, as the work I have to do today is no fun at all and this provides a welcome distraction. Head of Legal has tagged me for this meme, which is to list five non-law blogs that I like. This will not be hard - I spend most of my free time trawling through frivolous, ephemeral, and sometimes downright dirty websites. This list is therefore not highbrow (perhaps save the last one or two), but it will make for some self-indulgent amusement when you’re sick of the law - and isn’t that the point of the meme?

The more difficult matter would be to tag others to do it. As I’m at the tail end of this meme, and I’m not the most sociable man on the blogosphere, it could be difficult. So like many difficult problems, I’m going to avoid it completely. If you read this and would like to be tagged, contact me and ask. I shall then confer one of my tags upon you. Not in the spirit of the thing, but there you are.

Anyway:

 

1. Sarah Palin’s blog

For me, as many others, following the US elections is a guilty pleasure. Did the BBC need to send so many journalists? Will McCain v Obama really have that much of an effect on our lives in the UK? No, it’s just that we Brits like soap operas, and we all loved the West Wing. Read Sarah Palin’s blog*. Even if that last sentence turned you off, click anyway - there’s a pleasant surprise when you read it.

*May not really be Sarah Palin’s blog.

 

2. Filthy Fan Fiction (NSFW)

Does what it says on the tin. I laugh my peurile head off at all of them, but Anne Widdecombe and John Noakes are my favourites. Not Safe For Work, as they say.

 

3. spEak You’re bRanes

This site collates the comments from the bottom of news stories, usually on the BBC’s Have Your Say. The commentary is outstanding.

 

4. Michael Bunning’s blog

Are video games art? Are they literature? You’ll raise your eyebrows but I still believe that some games I’ve played in the past are these and more. Increasingly cinematic, increasingly immersive, and increasingly big business. In their first week of sale, Halo 3 (which I don’t really like all that much) and GTA IV (which I love) took $300 million and $500 million respectively. Contrast with this summer’s blockbuster film: Ironman. It’s opening week grossed a paltry $121 million. Michael is a new blogger, but clearly loves games and the industry. The link above gives you his links to other video game blogs. Those who see that I’m in his blogroll already, and conclude his inclusion here is because we must be friends in real life, should be ashamed of themselves.

 

5. Astronomy Picture of the Day

If it has a feed then it’s a blog as far as I’m concerned. Each day NASA give you a picture of the cosmos, together with an explanation of what you’re seeing. If I have religion, then it’s Einsteinian, so come to the temple and pray.

Consultation on flexible working extension opens

Published
by
Usefully Employed
on August 28, 2008
in Family Friendly Rights
. 0 Comments

BERR has launched its consultation exercise for the extension of flexible working rights to parents / carers with children up to sixteen years. Presently the right only exists until the child is six, unless he or she is disabled. This will no doubt cause some challenging cases for tribunals - the reasons why parents need time off for kids aged six and under really just boil down to childcare availability and illness. As harassed parents of teens will know, they come with their own range of inconvenient demands.

The consultation (the full documents can be found here) follows a report by Imelda Walsh, HR director at Sainsburys, which recommended that the changes be brought in. Even the CBI is in favour, provided it doesn’t come in ’til next October.

DIY Divorce

Published
by
Usefully Employed
on August 28, 2008
in Rambling and Solicitors
. 0 Comments

Fellow blogger John Bolch of Family Lore has written an e-book all about divorce. There are far too many divorce solicitors out there who’ll charge a couple of grand for a simple uncontested divorce and agreed financial settlement, so the meagre amount you can pay to get the expertise of one of the good guys makes it worth shelling out. This is, of course, assuming that you need a book on divorce. You don’t… do you?

Online legal services provision, as well as DIY, is on the increase, and it will be interesting to see how much independent bloggers / practitioners make their mark in the new world order. Unfortunately there’ll be nothing similar coming from me in the near future - my second six and its attendant daily nationwide travel starts very soon indeed.

Brief break in transmission

Published
by
Usefully Employed
on August 21, 2008
in Rambling and Usefully Employed
. 1 Comment

I shall be camping and surfing in North Devon until early next week, so no posts are likely. Hope you all enjoy your bank holidays.

Dismissal & re-engagement is still dismissal shocker

Published
by
Usefully Employed
on August 19, 2008
in Contracts of Employment and Unfair Dismissal
. 0 Comments

…pretty obvious really. An employer will often wish to unilaterally vary a contract, and it may have good or bad reasons for doing so. A key moment when this might happen to a small business is with pay intervals. Many small construction / engineering businesses still have weekly paydays. Obviously this is expensive and increasingly rare, and movement to monthly pay intervals can save a significant amount of money. Some employees bitterly oppose this move however, and I’ve worked with several businesses trying to bring this in. The legal point arises because employees can point to their contracts, which will often state (as it is required to do by s1 ERtsA 1996) that pay is weekly. Moving to monthly pay therefore represents a unilateral variation of a contract, which of course is impossible under contract law.

The remedy is to consult with staff, and look at different methods of softening the blow. In the face of impacable hostility simply serve notice of termination of the old contract with an offer of immediate re-engagement on the same terms save for the pay interval.

This is a huge simplification but if it’s done right and the reasons on the business are pressing enough then the exercise works well - there’s no breach of the contract, there’s no unilateral variation. The employee is offered a choice - sign up to the new contract or don’t, and go home. The employer takes his chance withn unfair dismissal claim. On the facts above the employer would have a good shot at a fair dismissal, with the principal reason for s98 being Some Other Substantial Reason. This type of termination has reared its head in reports, usually surrounding introduction of restrictive covenants to existing staff, or organisational restructures. Obviously the process is fraught with worry and peril, the usual allegation against the employer being that it’s used to mask redundancy or an employee is being “managed out”.

In the recent case of Darby & Anor v. The Law Society [2008] UKEAT the employer, who should have known better, botched up this exercise by muddling its correspondence with words like ‘variation’. That’s fine at a negotiating stage - no-one wants to go through the process if unnecessary - but the cleanness of the procedure was lost. The case is a bit fact sensitive, but this sort of argument should never arise in the first place.

  • Record contractual variations in writing, and assume they don’t exist until this happens;
  • If you dismiss someone, be sure you’ve done it and communicate the reason and the circumstances. If you haven’t dismissed someone, but it might be taken that you have, affirm the employment relationship in writing.

Automatic unfair dismissal wasn’t raised in this appeal, but the statutory procedures would apply equally as they do to other dismissals.

MI5 embraces gay spies

Published
by
Usefully Employed
on August 18, 2008
in Discrimination
. 3 Comments

MI5 has hired Stonewall to advise it on recruitment of more staff from an LGBT background*. This is very sensible - some always react to this sort of news to ask why this sort of campaign is necessary if the employer is already practicing equal opps. In fact, it’s a very sensible move for any ‘establishment’ organisation to widen the field of suitable candidates and increase the quality of your hires - especially in a field such as this where the budgets will have gone up, but the amount of applicants may have stayed the same.

Also key is the amnesty (although it’s not called this) to gay current operatives. The key thing (as I understand it!) with security-cleared staff is that they’re no longer penalised or regarded with suspicion for their sexual orientation, but they are expected to confess all at their security interviews. As the Times article notes, those who have covered up their sexuality from a time when it was forbidden may still be covering it up to hide the fact that they have lied in the past. As the objective of the disclosure is to identify and prevent the possibility of blackmail or threats of exposure, allowing these people to come clean without repercussion was in important and sensible move.

This news follows on from the similarly positive news on the Army becoming a diversity champion.

And less we become complacent, read some of the idiotic comments at the foot of the Times article to see how dangerously small minded some have become.

 

*Footnote here - I am increasingly seeing the abbreviation LGBTQI, with the last two letters standing for ‘queer’ and ‘intersex’. Intersex as distinct from trans I can start to grasp, but how is queer different to L, G and B? No doubt someone out there can shed light on it, please let me know.

**EDIT:- One of the non-idiotic Times commenters points out Maurice Oldfield, who successfully became head of SIS / MI6 in 1973. Despite a distinguished career his security clearance was revoked when his homosexuality emerged.

Costs orders in favour of non-lawyers

Published
by
Usefully Employed
on August 17, 2008
in Lawyers and Solicitors
. 2 Comments

Employment law solicitors who have spotted the judgment of the EAT in Ramsay & Ors v.Bowercross Construction Ltd & Anor ought to be cracking out the champagne. I have blogged before about the fact that solicitors are in severe competition with ‘consultancy’ outfits, such as RBS Mentor, Croner, Peninsula, First Assist, Qdos and the like, who do a huge amount of the tribunal litigation in this country. In practice, many of their litigators are “former solicitors” or “non-practicing barristers”. The reason for this is that those legal professionals have identified that, for them, working for these organisations can be an attractive career move away from a law firm or self-employment.

Current regulations forbid any practicing solicitors from providing legal services to the public through any medium other than an actual law firm regulated by the SRA. One rule for any such firm is that it is 100% solicitor owned; so all partners or shareholders must be solicitors themselves. This is of course no good for an organisation like RBS Mentor, owned by a bank, or First Assist and Qdos, privately-owned insurance services and consultancy providers. So these businesses set themselves up as litigators, but simply do not describe any of their litigators as solicitors or barristers, simply “representatives” or “consultants”. As there are no rules on rights of audience in the tribunals, these people may then do casework and appear in the tribunal to their heart’s content. They sometimes still farm the work out to solicitors, and sometimes book counsel to appear at hearings, simply as their work waxes and wanes. A solicitor employee will simply shelve his or her practicing certificate and then not hold out as a solicitor. There is still a question mark over the professional acceptability of this, although it is commonplace.

Of course this causes problems with the rest of the law and legal system, which is used to giving considerable favour to qualified lawyers that appear before it. A few weeks ago we found out that advice from these non-qualified representatives does not attract privilege (at least before litigation is contemplated). Now we find out that they are not allowed costs orders. The decision springs from the principle that appeared in Agassi v HM Inspector of Taxes [2005] EWCA Civ 1507, which considered the exact same position but with tax specialists rather than employment. Andre Agassi’s tax consultants had done an admirable job of conducting the case on his behalf, but they weren’t a law firm so no costs award for them.

This is a fairly severe impediment to insurers (the most common users of these companies) and those that are paying privately, as although costs orders in the tribunal are comparatively rare, they provide protection to those companies who are forced to litigate a misconceived or mischievous claim. Now a Claimant at risk of a costs order can proceed in the knowledge that if he is against a non-law firm his exposure will be greatly limited.

It should be noted however that the Respondent in this case was allowed its costs of counsel who appeared at the hearing, since he was a qualified lawyer.

Clearly change is needed, as these companies are accepted as a valid part of legal services provision. It is likely reform will come with Alternative Business Structures, due in the next few years.

Charon QC - podcast 77

Published
by
Usefully Employed
on August 10, 2008
in Discrimination and Podcasts
. 6 Comments

I have taken part in a podcast with Charon QC, where we talk about discrimination law. Listen to it here:

Listen to Podcast 77: Usefully Employed on Employment Law