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The truth on costs orders in the employment tribunal

Published
by
Usefully Employed
on April 15, 2009
in Employment Tribunal
. 0 Comments

The excellent Employment Tribunal Claims blog (which I shall now belatedly add to my blogroll), has performed some analysis on the frequency and amount of costs orders in the tribunals.

In summary, they report that the percentage of cases which proceed to a full hearing that result in a costs order against the Claimant is less than 1%, and that the majority of these are for figures significantly less than £1,000.

Have a read.

Of course, the statistic we can never know is in how many cases that proceed to a hearing is a warning on costs issued by the Respondent’s representative? Somewhat higher methinks…

If you are in person and on the receiving end of a letter warning you of a costs application, perhaps accompanied by some terrifying schedule, then treat it as a warning to do what you should be doing at all times - taking an objective look at your case to see if there is a prospect of success. If your claim is one that might succeed, and your conduct of the litigation has been reasonable, then the very broad view is that you don’t need to worry too much about costs.

Employee suspended for disclosing anti-gay views in a conversation

Published
by
Usefully Employed
on April 14, 2009
in Discrimination
. 6 Comments

The reason that the regulations concerning sexual orientation and religion and belief will cause so many thorny problems is that the latter may well protect opinions and points of views (what else is a religion or philosophical belief?) that are rather strongly against the practice and free expression of the former.

The Times reports that a worker at a Christian hostel in Southampton was asked his views on homosexuality in a conversation with a colleague. His reply, that he was opposed to same-sex marriages and to homosexual clergy but he was not homophobic and had homosexual friends, earned him a suspension for “promoting [his] religious views which contained discriminatory comments regarding a person’s sexual orientation. The action was apparently to “to safeguard both residents and staff”.

I suspect this case will make good news copy but not really any good law. The worker is prima facie entitled to hold his religious beliefs, but that right is subject to employer controls on dignity in the workplace and so on. If a gay employee was subjected to preaching on brimstone and hellfire without invitation or acquiescence, then he would likely have a complaint. If the conversation here was simply such that the worker was asked “What are your religious views on homosexuality?” and replied as reported, then it may well be that the complaint against him is weak, and does not justify something that may be indirect religious discrimination.

Cases such as these will be deeply fact sensitive. The best guidance for employers is that they need to foster an approach to their employees which values the right to hold a sexual orientation, and the right not to have to hide it under a bushel, but similarly respects the right to hold a religious view, while recognising that expression of some of its aspects may be justifiably restricted.

For the strength of religion in shaping behaviour, see this stunning  collection of photographs of Easter Week celebrations and observances around the world, from the usual crowds in Vatican City to bloody self-flagellation in the Philippines.

 

Boston.com - The Big Picture - Penitents take part in a procession of the Fusionadas brotherhood during Holy Week in the Andalusian city of Malaga, southern Spain April 8, 2009. (REUTERS/Jon Nazca) #

Boston.com - The Big Picture - Penitents take part in a procession of the "Fusionadas" brotherhood during Holy Week in the Andalusian city of Malaga, southern Spain April 8, 2009. (REUTERS/Jon Nazca) #

Boston.com - The Big Picture

 

And similarly, check out the oldest known depiction of a gay couple:

 

Khnumhotep and Niankhkhnum © 1999 Greg Reeder

Khnumhotep and Niankhkhnum © 1999 Greg Reeder

Khnumhotep and Niankhkhnum are shown here in the middle of a nose-rub, the most intimate gesture in Ancient Egyptian art. They were a couple, with a family, and lived in Egypt around 2400 BC.

Imminent redesign of Usefully Employed

Published
by
Usefully Employed
on April 14, 2009
in Usefully Employed
. 0 Comments

Following a period of shameful inactivity there will, by the end of this week, be a redesign of Usefully Employed - not necessarily aesthetic, but centred around content. Note that service may therefore be intermittent during this time.

What would you like to see on an employment law website like this one? Clearly there’s a limit to what I can produce, but I would like to have nutshell guides on the main areas of employment law, together with the current blog covering employment law news. Anything else?

Let me know by commenting here or by emailing me at webmaster [at] usefully employed [dot] co [dot] uk

Article 6 right to legal representation in disciplinaries

Published
by
Usefully Employed
on March 19, 2009
in Disciplinary, Dispute Resolution regulations, Employment Tribunal, Lawyers, Trade Unions and Unfair Dismissal
. 1 Comment

It’s a common request - “Can I bring a solicitor to my disciplinary?” - and a surprise to many employers that they have a right to refuse. There is a right under the Employment Relations Act 1999 to be accompanied at a grievance or disciplinary meeting by a fellow employee or a trade union representative. There is no right to be accompanied by a solicitor, and it’s easy to understand why. These meetings are internal, they are not concerned with deciding someone’s legal rights or making legal judgments. They are for the benefit of the employer in order that he can decide how to treat an employee, whether it’s a disciplinary sanction or the offering of some sort of satisfaction for their grievance.

Indeed, the language of Article 6 refers to ‘determination of civil rights and obligations’ when referring to the need for an impartial tribunal, and so on. Some new areas risk blurring the lines: there are now provisions for workers to be legally prevented for working with children, in schools, and with vulnerable adults where concerns over their behaviour has come to light. In this situation the effect of the disciplinary proceedings can be said to have consequences that go further than the relationship between the employer and employee. 

In the case of G, R (on the application of) v X School & Anor [2009] EWHC 504 (Admin), a teacher was accused of sexual impropriety with a 15 year old, involving a breach of trust. He was found by a disciplinary panel to have been in breach of trust, and the case referred to the Secretary of State to see if a direction should be made forbidding him from working in education. He was refused legal representation at the meeting. He challenged the validity of the meeting by judicial review, claiming that under Article 6 the proceedings were effectively criminal proceedings given the gravity of the allegations and the consequences of adverse findings. In the alternative, he claimed that even were the proceedings civil then they were of sufficient seriousness to require a right of legal represenation under article 6. The High Court found:

In my judgment, the gravity of the particular allegations made against the Claimant (sexual impropriety with a person under 18 and abuse of position of trust), taken together with the very serious impact upon the Claimant’s future working life of a potential s.142 direction, are such that he was, and is, entitled to legal representation at hearings before the Disciplinary Committee and the Appeal Committee. On such matters, the Claimant could not fairly be expected to represent himself, and being accompanied by a trade union official or a work colleague (even if available) was not sufficient.

It is important to realise that direct enforcement of human rights legislation, and judicial review proceedings at all for that matter, is only possible against public sector employers. Even so, this ruling opens the way for a considerable widening in what procedural safeguards must be put in place for more serious disciplinary cases.

We already have a dodgy employee register…

Published
by
Usefully Employed
on March 11, 2009
in Unfair Dismissal
. 4 Comments

The secret database of construction workers, maintained illegally but used by some big name companies, hit the headlines last week. Ian Kerr illegally maintained a database of some 3,000 workers alongside descriptions of their lazy attitudes, poor timekeeping, and so on. The company has been shut down.

Everyone seems to have overlooked that a register somewhat like this exists anyway, in the form of the National Staff Dismissal Register. I blogged about this back in May and the register would seem to still be in hand, although it has managed to keep out of the headlines. The NSRD was sanctioned by the Information Commissioner after certain safeguards were agreed - and in fairness the scope of behaviour covered is much smaller. Visit its website here.

Regulation of solicitors

Published
by
Usefully Employed
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
by
Usefully Employed
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

Harassment

Published
by
Usefully Employed
on February 28, 2009
in Discrimination
. 0 Comments

The (relatively) new President of the EAT, Mr Justice Underhill, has usefully laid down guidance on harrassment provisions, in the case of Richmond Pharmacology v. Dhaliwal [2009] UKEAT. Until 2003 harassment didn’t exist as a discrete statutory claim, meaning that the courts had to adapt the normal provisions on detriments in employment to cover harassing behaviour. It simply wasn’t up to the job, as an actual detriment in the Claimant’s employment was not always easy to establish.

Following implementation of Directive 2000/43/EC harassment was defined as follows in (more or less) all areas of unlawful discrimination:

(1) A person subjects another to harassment … where, on [the unlawful grounds], he engages in unwanted conduct which has the purpose or effect of -

(a) violating that other person’s dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for him.

(2) Conduct shall be regarded as having the effect specified in paragraph (a) or (b) of subsection (1) only if, having regard to all the circumstances, including in particular the perception of that other person, it should reasonably be considered as having that effect.

In Dhaliwal Underhill J helpfully breaks down this provision. He notes there is a three stage test:

  1. Did the Respondent engage in unwanted conduct?
  2. Did the conduct in question have either the purpose or the effect of (i) violating the Claimant’s dignity or (ii) creating an adverse environment for him or her?
  3. Was that conduct on prohibited grounds? (eg sex, race, national origins, sexual orientation and so on)

It is made fairly clear that ET judgments must address these three points in their reasons.

There are four other important points made:

  1. Authorities on harassment prior to the new statutory definition above are “unlikely to be helpful.” Furthermore, harassment under discrimination legislation and harassment under the Protection from Harassment Act 1997 are completely different beasts.
  2. It’s either a purpose or an effect (or of course both!) that are necessary at stage 2. The practical effect of this is that a claim will be successful if the conduct had the consequence of violating the Claimant’s dignity or creating an adverse environment, even if the Respondent’s purposes were innocent. This could also work the other way round, if the Respondent for some reason intended that the conduct would have the effect, but in fact it did not. Underhill J points out that the latter claim will be rare, but it does mean that overt abuse (where the purpose is clearly meant to be abusive) can be the subject of a successful claim even where the Claimant is unaffected by the treatment.
  3. Subsection 2 should not be forgotten - there is an objective test as to whether it was reasonable that the conduct had the effect complained of.
  4. ‘Grounds’ - an examination into the ‘mental processes’ of the Respondent, so as to ascertain whether the treatment was on the grounds of the Claimants’ race, sex, etc, is not necessary where the abuse is overtly racist, sexist and so on.

Tribunals Service

Published
by
Usefully Employed
on February 28, 2009
in Employment Tribunal
. 0 Comments

Unlike many areas of the justice system (read: the hideously understaffed County Courts) I’ve never had a problem dealing with the Tribunals Service. There seems to be an appropriate staffing level, you can get a fax looked at by a Judge and a response sent out the same day if it’s urgent, and there’s none of that harrassed and uncooperative manner you find elsewhere.

But god forbid a service that works well is just left to get on with it. The Contracting Out (Administrative Work of Tribunals) Order 2009 SI 2009/121 enables the Lord Chancellor to contract out the administrative functions of: 

  1. the First-tier Tribunal;
  2. the Upper Tribunal; 
  3. employment tribunals;
  4. the Employment Appeal Tribunal; and
  5. the Asylum and Immigration Tribunal.

Oh. Joy.

How can harmony be achieved between believers and non-believers?

Published
by
Usefully Employed
on February 24, 2009
in Discrimination
. 0 Comments

There’s an interesting Comment Is Free piece on this issue, which is worth a read, although it poses more questions than it answers. Mark Vernon makes the interesting point that routinely bumping into people whose views are diametrically opposed to your own is a new phenomenon giving rise to new conflicts. Most people used to live in communities with largely homogenous beliefs.

Mark Vernon - Caught in a vicious spiral of complaint