Should we ban ‘firing and re-hiring’?

Keir Starmer addresses the TUC today and – such is the nature of these events – we already know what he is ‘expected to say’. Starmer will condemn employers (recent examples include British Gas and British Airways) that have fired staff only to re-hire them on less favourable terms and conditions. According to the Guardian he will say that such practices are:

‘not just wrong but against British values’

and that:

‘These tactics punish good employers, hit working people hard and harm our economy. After a decade of pay restraint – that’s the last thing working people need, and in the middle of a deep recession – it’s the last thing our economy needs.’

Now we are some four years away from a Labour Party manifesto that might actually propose a change of the law in this area, so I don’t criticise Starmer for being vague about what is actually being proposed here. What we are getting is not so much a new policy as a ‘policy flavour’ (Copyright: ‘The Thick of It’). But it is worth looking at what the law actually is on this topic before deciding whether it needs changing and what a change might look like.

The practice of dismissing employees and then reengaging them on different terms and conditions is not one confined to bad employers. It is the nuclear option in the negotiation of contractual changes, but it is one that has been used by employers of all types in both the public and private sector. The reason it is a ‘thing’ is that contracts of employment cannot just be varied unilaterally. A contract is an agreement and so any changes to it also have to be agreed by both sides. Sometimes that agreement is given in advance – where the contract includes a variation clause – but the extent to which an employer can rely on those to make major changes is not entirely clear. Normally new terms have to be negotiated – either with a recognised trade union or individual employees. If negotiations break down for any reason, the original terms continue in place.

But while an employer cannot change the contract unilaterally, it can bring it to an end. By giving notice of termination the employer can end the contract that it doesn’t like and then propose a new one that the employee is free to accept or decline. Since declining the offer will leave employees out of a job we might query the extent to which they have a free choice in the matter, but that is at least the legal position.

It is easy to find examples of employers resorting to this tactic in a way that would strike most people as unfair. A successful company imposing a pay cut or reducing entitlements just because it can will not attract much sympathy. But you can equally easily give examples of employers who were just doing their best to protect as many jobs as possible. Perhaps the change is the only way that the employer can avoid widespread redundancies. Perhaps most of the workforce is willing to agree to the new arrangement and it is just being blocked by a few employees who are unwilling (or unable) to make the change.

It is not that the practice of ‘firing and re-hiring’ is in itself unfair. Rather, it is the substance of the changes being made and the wider circumstances faced by the employer that make the difference between a reasonable reorganisation and an unreasonable abuse of the employer’s power.

And employment law is already involved. An employee who is dismissed and then reengaged has still been dismissed. A dismissal is the termination of a contract of employment by the employer – it does not go away if the employee accepts a new contract. Employees with two years’ service can claim unfair dismissal even if they accept the new contract and continue working for the employer. An employer who dismisses hundreds of staff just to impose new terms and conditions on them is risking hundreds of individual tribunal claims.

Where the process affects more than 20 employees there is also (it seems) an obligation to consult employee representatives exactly as though this were a mass redundancy exercise. This is because that is what it is. Redundancy for these purposes has a wider meaning than when we are considering the fairness of a redundancy dismissal or an employee’s entitlement to a redundancy payment. When it comes to collective consultation the test is whether the employer is proposing to dismiss employees for a reason ‘not related to the individual concerned’ (S.195 Trade Union and Labour Relations (Consolidation) Act 1992). It is widely accepted that an exercise that involves dismissing employees who don’t agree to new terms and conditions falls under this category. Personally I’ve always thought that the employer could argue that each dismissal was based on the individual employee’s refusal to accept the change, but that is a debate for another day. And of course, while the employer must consult ‘with a view to reaching an agreement’ with the representatives, the reality is that an employer is not obliged to change course as a result of the consultation. The duty to consult imposes a time constraint (30 or 45 days depending on the number of employees affected) and requires the employer to jump through some procedural hoops – but it doesn’t provide any mechanism for judging the fairness of what is being proposed.

In reality, nor does the law of unfair dismissal. The ‘range of reasonable responses test’ means that tribunals have limited scope for inquiring into the fairness of the change that the employer is making. They can ask whether the employer had a legitimate business reason for the change being proposed, but can’t delve too deeply into whether or not the employer could have solved its problems some other way. Instead they tend to concentrate on the way in which the change was made – whether the employer genuinely tried to reach an agreement with the employees first and what consultation took place when dismissals were planned as an alternative.

This is a problem that goes way beyond ‘firing and re-hiring’. The need for a tribunal to avoid ‘substituting its own view for that of a reasonable employer’ has turned unfair dismissal into a largely procedural right with the case law concentrating on how the employer has gone about dismissing employees and not looking too closely at the strength of its reasons for doing so. If I were in charge of employment law I would want to do something to fix that – and Britain would be a better place.

All the same, an employer who is ‘firing and re-hiring’ (I can’t believe I’ve always referred to ‘dismissal and re-engagement’ when there is an alternative version that actually rhymes!) is not doing so in a legal vacuum. It has to weigh its need to make the change with the risk it faces of unfair dismissal claims and its obligations to consult employee representatives. It is not something to be done casually or on a management whim. When manifestos come to be written, I doubt that a total ban on the practice will make the cut.

This is, by the way, exactly the sort of topic that I will be running webinars on this autumn. The first dates are about to be announced – sign up here to be the first to hear about them.

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New Starters and the Coronavirus Job Retention Scheme

UPDATE: Wednesday 15 April 2020

In a major change to the Job Retention Scheme the Treasury has announced that the cut off date of 28 February has been moved to 19 March.

The guidance now says this:

Employees you can claim for
You can only claim for furloughed employees that were on your PAYE payroll on or before 19 March 2020 and which were notified to HMRC on an RTI submission on or before 19 March 2020.This means an RTI submission notifying payment in respect of that employee to HMRC must have been made on or before 19 March 2020. Employees that were employed as of 28 February 2020 and on payroll (i.e. notified to HMRC on an RTI submission on or before 28 February) and were made redundant or stopped working for the employer after that and prior to 19 March 2020, can also qualify for the scheme if the employer re-employs them and puts them on furlough.

If you want to read the full Treasury Direction setting up the scheme you can now read that here – but be warned, it’s a bit complicated!

As a result of this major U-turn, the remainder of this post is of historical interest only!


The Coronavirus Job Retention Scheme is the unprecedented – in the UK at any rate – government scheme that will award grants to employers who have ‘furloughed’ employees, potentially funding up to 80 per cent of their wage costs to a maximum of £2,500 per month.

The scheme is not yet up and running and we are reliant on Government guidance as to how it will work – which is being updated almost in real time, it seems, as the details are being thrashed out.

At first, it is fair to say, everybody was simply impressed – and taken aback – at the sheer scale of what the Chancellor was proposing. Since then, however, some of the shortcomings of the scheme have become more apparent.

One of these is that employees are only eligible to be furloughed by the employer whose PAYE system they were on as at the 28 February. Anyone who has started a new job in March – and that must cover thousands of individuals – will not be covered by the scheme.

The reason for this is simply that HMRC does not want to face fraudulent claims from companies entering into bogus employment arrangements purely to take advantage of the scheme. An employer should obviously not be allowed to start hiring people with the object of placing them on immediate furlough and claiming £2,500 a month for them. But the furlough scheme was only announced on 20 March. Why should someone who had been in a new post for two weeks by that time be excluded from it?

The Government’s view is that the only evidence of employment that works for them is the PAYE system. The scheme is being run and administered by HMRC and the PAYE records are something that HMRC can easily check. An employee starting in March will have all sorts of documentation showing that the appointment is a genuine one, but the system will not allow for HMRC sifting through letters of appointment and signed contracts of employment – it is PAYE that counts.

Last week the Chancellor ran an #AskSushi event on his Twitter feed. Rather predictably he was swamped with questions which allowed him to carefully select the half-dozen of so that he felt comfortable answering. In fairness however, he did address the issue of new starters. Watch this:


I am no expert on running a PAYE system (in fact that is a massive understatement), but it seems that keeping the cut off date at 28 February is the only way of ensuring that employees were not entered onto the system after the furlough scheme was announced. That at any rate appears to be the Government’s position. Any accountant or payroll professional will know better than me whether that stands up to scrutiny.

The best that the Government can offer those who are no longer employed by the employer they were with on 28th February is that the old employer can take them back and then put them on furlough. The Guidance updated on 4 April makes it clear that this applies whatever the reason for the employee leaving. It is not confined to cases where the employee was made redundant as a result of the lockdown.

But it is hopelessly unrealistic to expect that employers are going to reemploy people who have resigned or been dismissed purely so that they can be placed on furlough. To be blunt, what is in it for the employer? They incur the cost of administering the employee’s furlough pay and face potential legal difficulties when the furlough period ends.

This is an odd feature of the furlough scheme. It is designed to protect the income of employees but it is the employer that receives the funds from government. Employers are placed under no obligation to even consider furlough and there is no mechanism for employees to claim furlough as any sort of right.  With the scheme itself not due to be in place until the end of April – and that is in itself an ambitious target – it is understandable that many employers remain reluctant to commit themselves to retaining employees that they simply cannot afford to pay.

When all this is over (this too shall pass) there will be a flood of Tribunal cases picking over how employers reacted to the coronavirus outbreak. There will be claims for unlawful deductions from wages, discrimination claims arising from who was offered furlough and who was not, and unfair dismissal claims where the Tribunal will have to decide whether having the option of furlough made it unfair to dismiss an employee for redundancy.

But those cases will not be heard until next year at the earliest. Right now the priority is to cushion businesses and employees against the massive shock that has hit the economy. Widening the scheme to cover employees covered by the March payroll may increase the risk of fraud – but an employer would have to be pretty quick off the mark to invent bogus employees and set them up on the system in the 10 days following the Chancellor’s first announcement.   It is surely a risk that is worth taking.


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Darren Newman


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Sleepover shifts and the minimum wage

Next week the Supreme Court will hear argument in two cases involving care workers. At issue is whether a care worker who ‘sleeps over’ in the care home should be regarded as working for that whole shift so that each hour counts towards their entitlement to the National Minimum Wage or whether they should only be regarded as working when they are woken during the night to perform an actual task. In this post I want to explain what the issues are, and how the law developed to this point.

The two cases

At the time of writing there are two cases scheduled to be argued over the course of a two-day hearing. It is not certain that both will make it that far. In Royal Mencap Society v Tomlinson Blake the employee provided care for vulnerable adults in their home. This involved working in the afternoon and evening and then the following morning. Between these two regular shifts she was also required to work a ‘sleep-in shift’ between 10pm and 7 am.  She had no specific duties during that shift but she was required to remain in the house, be alert to any requests from help from the service users and to respond to any incident that might arise. In the course of 16 months, the Tribunal found, she was required to intervene on six occasions. She was provided with her own bedroom with a shared bathroom and was generally expected to get a good night’s sleep on the occasions when she wasn’t needed to respond to an incident.

She was paid just £29 per nine-hour sleep-in shift. The question is whether each hour in that shift should count towards her minimum wage entitlement.

The other case due to be argued is Shannon v Rampersad. As I write the claimant in this case is seeking to crowdfund his appeal and is some way short of his target, so it is not entirely clear that he will be able to take part. In any event, the facts of his case are somewhat more unusual than the normal ‘sleeping in’ case.

According to the facts found by the Tribunal, Mr Shannon was a family friend of the owner of a care home called Clifton House. At the top of the care home there was a staff flat known as ‘the Studio’ and from 1993 Mr Shannon employed as an ‘on-call night care assistant’ and given the flat to live in. He was required to be in the flat from 10pm until 7 am every night and to respond to any request for assistance from the night care worker on duty in the home.  In practice this rarely happened and he so he would normally sleep through the night undisturbed. He worked elsewhere as a driver during the day.

His wages were nominal. He was given £50 per week at first, eventually rising to £90 per week. The main benefit of the job was that he was provided with free accomodation – including all utilities. In 2013 the care home was sold and in anticipation of that sale the owner asked him to sign a contract of employment setting out a wider range of duties than he had actually carried out. He also signed a tenancy agreement under which he agreed to pay rent of £120 per week. His pay was then increased to £210 per week to cover this.

When Mr Shannon was dismissed by the new owners he brought a claim alleging that he was entitled to be paid at the rate of the minimum wage between 10pm and 7am every night. He claimed backpay going back to the introduction of the minimum wage in 1998. Although his arrangement had been nothing to do with the new owners, they would certainly be liable for any backpay due as a result of the Transfer of Undertakings Regulations 2006 (TUPE). Since the claim in total amounts to some £239,000 they can perhaps be forgiven for feeling hard done by if the claim succeeds.

To understand the issues raised by these cases we have to go all the way back to the creation of the National Minimum Wage more than 20 years ago.

The First Low Pay Commission Report

The minimum wage was introduced by the new Labour Government in the National Minimum Wage Act 1998. Now that the Conservatives are so much in favour of the minimum wage that they have effectively renamed it the National Living Wage in an attempt to share in some of the credit, it is easy to forget how controversial it was at the time. But I remember very well the suspicion if not outright hostility there was to the idea – particularly from the business  community. The Government was keen to implement the law in such a way as to build consensus around the idea of a minimum wage and to make sure it was set at a level that business could live with. It set up an independent body called the Low Pay Commission to advise on the introduction of the minimum wage and the level at which it should be set – a function that it still fulfils today. The Commission was (and still is) made up of experts from both sides of industry and academia and the National Minimum Wage Act 1998 required the Government to consult it before introducing the Regulations that would contain the detailed provisions about how the minimum wage would operate (see S.5 of the Act). Specifically the Government had to consult them about what method should be used in calculating the hourly rate at which a worker was actually being paid in order to determine whether or not they were receiving the minimum wage.

Still with me? Stick with it, this will be important later.

The first report of the Low Pay Commission was published in June 1998 and the Government confirmed that it proposed to follow its recommendations. Had they decided to depart from them they would have had to make a specific report to Parliament to that effect.

This is what the Report said about sleep-over shifts:

‘4.34 Certain workers, such as those who are required to be on-call and sleep on their employer’s premises (eg in residential homes or youth hostels), need special treatment. For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work’

In the two cases that we are now concerned with the Court of Appeal placed some importance on this recommendation when interpreting the legislation. It strikes me, however, that this passage bears the hallmarks of a compromise within the Commission itself. The reference to the need for employers and employees to ‘agree their allowance’ suggests a process of negotiation. This was written at a time when the Government was also introducing a statutory right to union recognition and ‘social partnership’ was very much in vogue. The Commissioners might have thought that unions would be in a position to fill in gaps in protection left by the Minimum Wage Regulations and ensure that workers were treated fairly. The full report is almost 300 pages long. This one paragraph is the most detailed reference to sleepover shifts that it makes. I think the Court has placed more weight on this recommendation than it can reasonably be expected to bear – but we will come back to this point later.

The Minimum Wage Regulations

The Commission’s recommendation certainly seems at first to have made its way into the Regulations. It is a complicated story because the details of the Regulations have changed over the years. I don’t think there is much to be gained from comparing the various different forms of wording we have had since 1999 when the first Regulations were introduced. I am just going to look at what the current Regulations – the National Minimum Wage Regulations 2015 – say.

I am also going to concentrate on the definition in relation to ‘time work’ – that is work where the employee is paid by the hour. In Shannon the work in question is technically, I think, ‘salaried hours work’ which is dealt with in a different part of the Regulations. But I don’t think this makes any difference.

Here is what the Regulations say about sleep-over shifts:

Time work where worker is available at or near a place of work

32.—(1) Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.

(2) In paragraph (1), hours when a worker is “available” only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.

You may need to read this more than once. Take your time.

The meaning doesn’t exactly leap out at you does it? You don’t read this and think – ‘of course! it all makes sense now that you put it that way’.

(Personally I am baffled by the words ‘even if’. They seem to suggest that the provision of suitable facilities for sleeping would otherwise make it more likely that hours spent asleep would count as working time – which seems odd. Perhaps I’m missing something.)

Anyway. What this Regulation seems to be saying is this:

  • The time that you have to spend ‘available for work’ will count as working time if you are required to be at or near your place of work
  • But that does not apply if the place where you are required to be is your home
  • Nor does it apply to times when you are asleep – it only applies when you are ‘awake for the purposes of working’

So here comes the tricky bit.

This provision applies when workers are required to be ‘available for work‘. The implication is that they are not actually working, but the Regulations will treat them as though they are working because they are required to be at or near their place of work.

The provisions about sleeping only apply to this time when the workers are ‘available for work‘ – and it is worth noting that the Low Pay Commission report used the phrase ‘on call’ which carries the same implication of being available to do work if needed.

But what if sleeping over on the premises is the very work that you are employed to do? What if sleeping over is not something you do so that you are available for work if needed, but is an inherent part of your duties? If we can draw that distinction then we do not need to rely on Regulation 32 to turn that time spent available for work into working time because it already is. And if it already is working time then the fact that you are asleep for all or part of it does not matter because the sleeping exception only applies to time spent ‘available for work’ not to time that already counts as working time.

I think this argument is ingenious and clever.

The trouble is that, as a general rule, you do not want to present a court with ingenious and clever arguments. You want your arguments to sound like good plain common sense and I am not sure that this argument achieves that. But it has nevertheless been accepted in a number of cases. So much so that its rejection by the Court of Appeal in the cases that the Supreme Court will hear next week cases surprised almost everybody. That includes HMRC who just a few months earlier had launched a major new initiative aimed at helping the social care sector pay the huge amounts of backpay they were believed to owe workers who were working sleepover shifts. Since the Court of Appeal’s decision that has rather taken a back seat.

The Case Law

The case that first set the cat among the pigeons was British Nursing Association v Inland Revenue back in 2002. That was not about sleepover shifts, but it did challenge the traditional understanding of what ‘on-call’ or ‘stand-by’ means.  The employer ran an emergency bank nurse booking service that ran 24-hours a day. Overnight calls were answered by staff who were at home and free to do as they wished – including sleep – between calls. The Court of Appeal held that the workers were working throughout the overnight shift even when they were not taking calls. There was, after all no suggestion that the periods between calls during a normal day shift would not count as working time. Why then should the (admittedly longer and more frequent) periods between calls during the overnight shift be treated any differently?

Next was the case of  Scottbridge Construction Ltd v Wright in 2003. The employee was a ‘nightwatchman’  on the premises of a construction company. He came in at 5pm each evening and stayed until 7am the next morning. His tasks were described as ‘not onerous’ and for long stretches at time (including midnight to 5am) there was nothing specific for him to do. There was a TV that he could watch and a mattress that he could sleep on when he was not needed. The Inner House of the Court of Session (the Scottish equivalent of the Court of Appeal) held that the work he was hired to do was to be the nightwatchman for the whole of his shift. The fact that he had little or nothing to do for extended periods and was allowed to sleep on the job did not alter the fact that he was performing his duties throughout.

In 2008 these two cases were followed by the EAT in  Burrow Down Support Services Ltd v Rossiter. The employee in that case was hired to provide overnight security for a care home. he worked two nights a week running from 10pm to 8am. Apart from a handover when he arrived and a requirement to assist with breakfast from 7am he was free to sleep through the night if nothing untoward occurred. The EAT agreed with the Tribunal that the whole of his overnight shift should be treated as working time. The employee was not just ‘available for work’ overnight, the overnight shift was the work he was employed to do.  This meant that there was no need to deem him to be working under Regulation 15 and that the sleepover exception that applied under that Regulations was irrelevant.

The Burrow Down case opened the way for care workers working a sleepover shift to claim that they were working even while they slept. That was the conclusion in each of the following cases:

The cases do not all go the same way, however. On a number of occasions it was held that an employee was not working throughout an overnight shift but could properly be seen as being merely ‘available for work’ so that the time spent sleeping would not count. See, for example:

And indeed in the case of Shannon v Rampersad, now due to go before the Supreme Court, the Tribunal held – and the EAT agreed – that the employee could not really be said to be working throughout the night. His was genuinely a case in which he was merely ‘available for work’ – with the result that the time he spent sleeping did not count.

The Court of Appeal Decision

The decision of the Court of Appeal in the two joined cases of Mencap v Tomlinson Blake and Shannon v Rampersad runs to a pretty epic 70 pages. But its actual reasoning is easy to summarise. Basically the Court held that the Burrow Down case (see above) was wrongly decided. The idea that someone on a sleepover shift could be regarded as working throughout so that Regulation 32 did not apply to them was contrary to the ‘clear meaning of the Regulations’.

In Burrow Down the EAT had relied on the British Nursing Association case and the Scottbridge case. But in British Nursing the Court of Appeal’s decision was based on the assumption that the employees were effectively working throughout the shift – albeit with predicable lulls in the volume of calls they received. There was no suggestion that the Court would have taken the same view if the employee had actually been expected to sleep throughout the night.

In Scottbridge, the circumstances were also different from those of a genuine ‘sleep in’ arrangement. While the employee was allowed to sleep on a mattress when there was nothing for him to do it was not the case that he was specifically expected to sleep through the night with only infrequent interruptions. The Court of Appeal accepted that the distinction between working and merely being available for work was ‘subtle’ but held that it was artificial to treat a worker as working throughout a shift when it was positively expected that they would spend most of the time asleep.

The Court also placed a surprising amount of emphasis on that 1998 report of the Low Pay Commission. Since the Regulations were intended to implement the recommendations made in that report, this bolstered the view that workers on a sleepover shift should not be treated as working when they were actually sleeping.

On that basis, the Court overturned the finding in the Mencap case that the employee was working throughout her sleepover shift. She was merely available for work and so – in accordance with Reg 32 – the time she spent asleep did not count towards her minimum wage entitlement.

In Shannon the Tribunal had held that the employee was merely ‘available for work’ rather than actually working while he slept. The Court of Appeal held that this was ‘plainly right’. Since he was merely available for work it followed that Reg 32 applied and the time that Mr Shannon spent either at home or asleep did not attract the minimum wage.

So now it’s over to the Supreme Court to decide this issue once and for all.

What will the Supreme Court say?

The most important thing to remember is that the Supreme Court is not bound by any of the earlier case law. There will be lots of discussion about these cases, but when push comes to shove the Supreme Court is entitled to ignore them all. The central question the five Justices will have to decide is whether they think it makes sense to regard someone who is expected to sleep through the night as working rather than simply making themselves available for work.

In my view the Court of Appeal decision is too dismissive of the idea that someone on a sleepover shift can be working even if they are permitted to sleep for most of it. I also think the Court’s reliance on a 1998 report from the Low Pay Commission in interpreting the Regulations is just bizarre and I hope the Supreme Court does not vanish down that particular rabbit hole.

This case is actually an opportunity for the Supreme Court to consider what we mean by ‘work’. It is an odd feature of the Minimum Wage Regulations that there is no overarching definition of what constitutes work. We do have a definition in the Working Time Regulations, but that does not apply in this context and I doubt the Court will find any reference to that definition helpful.

So what is ‘work’?  To my mind you are working when you are performing a service at the behest of your employer. That might involve frantic activity, but in some circumstances it may involve no more than your physical presence – if that is the service that the employer requires of you. A care worker who works a sleepover shift does not tell their family ‘I’m off to be available for work in case I’m needed’ –  they say ‘I’m working tonight’. They sacrifice their freedom to spend their time as they choose because the employer needs them to be at work. They are not likely to be spending a restful night in a comfortable bed. Sleeping arrangements in a care home will probably not match the comfort they get at home. I don’t think it’s unreasonable to regard them as doing a night’s work in those circumstances and to expect employers to pay properly for the service that care workers are providing.

If I were sitting on the Supreme Court I think I would uphold the Tribunal’s decision in both cases. I would agree with the Tribunal that Ms Tomlinson-Blake was working when she had to stay overnight with her service users. But I would also agree that Mr Shannon falls on the other side of the line and cannot really be said to be working except on those rare occasions when he was actually called upon to help. This is the sort of distinction that should be left to employment tribunals to draw.

And yet… What niggles about this view is that I don’t think it leaves much room for Regulation 32. What is it actually there for? If being required to be present in the workplace is treated as essentially being required to work rather than just be available for work, then there is no need for a provision deeming it to be work at all.  The Supreme Court can’t just say ‘Look, Regulation 32 is a bit of a mess, lets just work around it’. They have to give it meaning. The best argument in favour of the Court of Appeal’s approach (much as I dislike it) is that it does just that. It doesn’t rely on a clever and ingenious approach and accords with what many people – particularly those who don’t have to work a sleepover shift in a care home – would regard as common sense.

Obviously I don’t know what the Supreme Court will actually say – and we will probably have to wait until late spring / early summer for a result. It should however be a fascinating case to watch on Supreme Court Live. I plan to be an enthusiastically partisan observer.










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Forstater v CGD Europe – what the Tribunal actually found

Debating transgender issues can be really difficult. It is one of those areas where you cannot really articulate a position without using vocabulary that at least some people will find objectionable. Writing about it feels like treading through a minefield –  one wrong step and you’ve caused offence.

But I’m going to try anyway because the case of Forstater v CGD Europe is a potentially important case about philosophical belief. It is also a case where much of the media debate is likely to miss the actual point of the decision.

The case has been brought by the Claimant Maya Forstater – a public policy researcher and writer who had a consultancy agreement with a not-for-profit think tank called the Centre for Global Development (CGD). She claims that following the end of her contract in December 2018 the CGD refused to engage her further because of comments she had made on Twitter and other forums expressing her beliefs about trans issues.

Now there is a temptation in a case like this to pick the side you are on before you look at the law or the actual evidence. You may take an instinctive stance based on your view of the nature of gender identity and how it relates to sex. There is a heated debate about ‘self-identification’ in particular and whether women only services or facilities are threatened by reforms that have been proposed to the Gender Recognition Act 2004.

This case is not about the rights and wrongs of that debate. Nor is it an unfair dismissal case. It seems clear that whatever the nature of the Claimant’s relationship with the CGD she did not have a contract of employment. Her complaint is not about dismissal. She is arguing that after December 2018 she was an applicant for employment within the meaning of the Equality Act 2010 – which has a wider definition of what counts as employment  – and that the refusal to engage her was discriminatory.

This means that whatever else the Claimant’s case is about, it is not about whether the CGD acted fairly or reasonably. Those are not issues for the Tribunal to decide as they are irrelevant to her case. She is claiming direct discrimination and the question to be decided is simply whether or not she was refused employment because of a protected characteristic. If she was then she will win – and there will be no room for the CGD to argue that they acted fairly in refusing to engage her. If she was not refused employment because of a protected characteristic then she will lose (subject to an outstanding indirect sex discrimination claim) no matter how unfairly she may have been treated.

The first stage in winning her claim is to show the belief that she holds – and because of which she says she was refused employment – is protected by the Equality Act. The decision that has just been published comes from a preliminary hearing to decide that question.

The belief at issue is quite a complex one and I don’t want to over simplify or misrepresent it.  Paragraph 41 of the Tribunal decision encapsulates, I think, what the Tribunal found the essence of her belief to be:

When questioned during live evidence the Claimant stated that biological males cannot be women. She consider that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate. On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex. She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally. If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. The Claimant made it clear that her view is that the words man and woman describe a person’s sex and are immutable. A person is either one or the other, there is nothing in between and it is impossible to change form one sex to the other.

So the question is whether this falls within the concept of ‘Religion or belief’ –  one of the nine protected characteristics set out in S.4 of the Equality Act. Section 10 of the Act says ‘Belief means any religious or philosophical belief’ – but the Act doesn’t really give you anything else to go on.

There is no suggestion that the Claimant’s belief is a religious one, so the Tribunal has to decide whether it is a ‘philosophical belief’. The leading case on defining a philosophical belief is Grainger plc v Nicholson in which the EAT held that the employee’s belief in anthropogenic climate change was protected under the Equality Act. That case set out five criteria against which a belief should be judged in deciding whether it should count as ‘philosophical’:

(i) The belief must be genuinely held.
(ii) It must be a belief and not… an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

The Tribunal applied these criteria and held that the Claimant’s belief met the first four of them but did not meet the last. Her belief was not worthy of respect in a democratic society because it was incompatible with human dignity and conflicted with the fundamental rights of others.

It must be quite a body blow to be told that  fundamental belief that you hold is not worthy of respect in a democratic society. But this finding has not been plucked out of nowhere.

The Grainger criteria were based on the case law of the European Court of Human Rights. And importantly, the right of a trans person to have their acquired gender fully recognised in law was established by that Court in Goodwin v United Kingdom.  It was as a result of that case that the UK Government introduced the Gender Recognition Act 2004 and the concept of a Gender Recognition Certificate – the effect of which is that:

…the person’s gender becomes for all purposes the acquired gender (so that, if the acquired gender is the male gender, the person’s sex becomes that of a man and, if it is the female gender, the person’s sex becomes that of a woman).

(S.9(1) GRA 2004)

Back to the Tribunal’s decision in Forstater. The key piece of reasoning is, I think in paragraph 84:

84. However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned. In Goodwin a fundamental aspect of the reasoning of the ECHR was that a person who has transitioned should not be forced to identify their gender assigned at birth. Such a person should be entitled to live as a person of the sex to which they have transitioned. That was recognised in the Gender Recognition Act which states that the change of sex applies for “all purposes”. Therefore, if a person has transitioned from male to female and has a Gender Recognition Certificate that person is legally a woman. That is not something that the Claimant is entitled to ignore.

The Tribunal’s finding is based squarely on the absolutist nature of the Claimant’s beliefs. I don’t think it is wholly outrageous to categorise them as being incompatible with the rights of those who hold a Gender Recognition Certificate as she denies the very thing that the Certificate is intended to achieve. The rights those holding a Certificate are specifically enshrined in law and are themselves derived from the European Convention on Human Rights.

As the Tribunal puts it:

The Claimant’s position is that even if a trans woman has a Gender Recognition Certificate, she cannot honestly describe herself as a woman. That belief is not worthy of respect in a democratic society. It is incompatible with the human rights of others that have been identified and defined by the ECHR and put into effect through the Gender Recognition Act.

I assume that this case will be appealed, but to be honest I think the Tribunal’s logic is pretty sound. I have seen a lot of commentary on Twitter to the effect that the decision is wrong and drawing all sorts of conclusions about its implications. But this is a view that seems to be based on strongly identifying with the Claimant’s beliefs rather than finding an actual flaw in the Tribunal’s reasoning.

Employment law is limited. It does not protect everyone and the protection it does give can be patchy and inconsistent. I am no expert on gender identity and how it relates to biological sex and I don’t seek to minimise the concerns and fears of individuals on either side of this debate. The Claimant in this case is perfectly free to hold the beliefs that she does and to argue for them in public and in private. But that does not mean that her beliefs must be protected under the Equality Act.  If, as the Tribunal found, they are not then others are free to choose not to engage her services.


Posted in Equal pay, philosophical belief, Uncategorized | Tagged , , | 18 Comments

Workers’ Rights and the EU

The annoying thing about the debate that has blown up over the weekend about workers’ rights post Brexit is that it rarely gets down to specifics. Take the Financial Times story on Friday. It referred to the possibility of divergence between the UK and the EU when it came to employment and environmental standards but didn’t highlight any particular employment rights that might be under threat.

Andrea Leadsom (who as Secretary of State fort Business has overall responsibility for employment law) responded to the Financial Times story with a Tweet:

The line that ‘in many areas our standards are already higher then EU [sic]’ is a familiar one. But it doesn’t tell us very much. When it comes to employment law, EU standards are a floor, not a ceiling. They provide a minimum level of protection that all member states must meet. Of course we exceed minimum EU standards in some areas, it would be pretty shocking if we didn’t.

I would be more reassured about the Government’s commitment to workers’ rights if instead of vague comments about maintaining high standards, they were able to say something more specific. If Andrea Leadsom were able to say ‘I agree that there should be a 48 hour limit on the average length of a working week’ then that would be meaningful. I would also like to hear Liz Truss, the Minister for Women and Equalities, say something like ‘I believe that there should be no cap on the amount of compensation that can be awarded in a discrimination case’.

But the truth is that I struggle to envisage either Minster making such a specific commitment. When push comes to shove, the Conservative mindset is to regard employment law as ‘red tape’ that stifles innovation and competitiveness. That doesn’t mean that they want to abolish it all – but they are more likely to regard it with suspicion and something that should be kept under review. The support that they have shown in recent years for the minimum wage has been a remarkable turnaround and is more than a little out of character. Long-term, a Conservative government is going to be open to the argument that employment law is a burden on business and the Government’s job is to lighten the load.

It is important to understand that they could do that even while complying with EU standards. There are huge areas of employment law that are nothing to do with the EU at all. The National Minimum Wage, for example is an entirely domestic matter as is the law of unfair dismissal and redundancy. Discrimination law, on the other hand, owes a lot to the EU. Sceptics often point out that the Equal Pay Act predated our membership of the Common Market and that Barbara Castle, who oversaw the introduction of the Act in 1970 was opposed to us joining. But while the Equal pay Act may be have originally been made in Dagenham, much of the law as it applies today was made in Luxembourg. The concept of an equal value claim, the idea of a pay difference being ‘tainted’ by indirect discrimination and the increase in potential back-pay from two years to six years all came from Europe. We should also remember that without rulings from the ECJ there would have been no protection against pregnancy discrimination or discrimination based on gender reassignment. The EU Equality Directive led to the outlawing of discrimination based on religion and belief and on the grounds of sexual orientation – and also the abolition of the small business exception in cases of disability discrimination. Without the EU our discrimination law might look very different.

I don’t believe for a moment that a UK Government would repeal discrimination law if it were no longer bound by EU law –  but it might be tempted to undermine it in places. Back in 2011 there was a serious push made by the coalition government to find some way of capping compensation in discrimination cases. In the end EU law proved to be too much of a barrier and the idea was dropped.

It is simply undeniable that workers’ rights are stronger as a result of our membership of the EU. So I’ve always been slightly irritated by the way in which Brexiters on the left (Lexiters) tend to play down the role that the EU has played in the development of UK employment law.  In last week’s Guardian, economics editor Larry Elliot issued a broadside against the EU’s record on workers rights. Much of his focus was on trade unions and industrial action – and for many on the left, this is where their suspicion of the EU as a capitalist conspiracy comes in. The article quotes the case of International Transport Workers Federation v Viking Line ABP in which the ECJ held that a union’s right to strike (which it acknowledged) did could not be used to prevent a shipping company from exercising its rights under the EU treaty to re-flag a ship from Finland to Estonia. The case needs to be read alongside Laval v Svanska (I think that Larry Elliot has possibly merged the two cases in his mind) which involved action aimed at a contractor using workers who were posted to Sweden from Latvia. The ECJ held that the right of the Latvian company to establish itself in Sweden overrode the right of Swedish workers to take industrial action aimed forcing the Latvian company to adopt Swedish terms and conditions.

These are both complicated cases and I’ve probably oversimplified what the ECJ said (check for corrections in the comments below). But it is worth noting that in neither case was the industrial action being taken by the workers whose terms and conditions were the issue. The industrial action involved in each case would have been unlawful secondary action if it had taken place in the UK and there is no suggestion from the ECJ that either the Estonian or Latvian workers would have been prevented from taking industrial action to improve their own pay.

But even if you are critical of the ECJ’s approach in these cases, I don’t see that it justifies regarding EU law as something that actually hampers workers’ rights. The crux, of course, comes in Larry Elliot’s final paragraph:

In consequence, the only sure way to advance workers’ rights is to elect a government pledged to full employment and collective bargaining. The notion that only Brussels stands in the way of a barrage of deregulation betrays not just a misunderstanding of the way the EU operates but also a deep and irrational pessimism on the left, a belief that the Conservatives will be in power for ever no matter what they do. The left doesn’t need the EU to fight its battles. What it needs is to make the case for better working conditions and win over a public sick of a labour market loaded in favour of employers. With a bit of self-confidence it shouldn’t be that difficult.

Well yes. If we elect a majority Labour Government under Jeremy Corbyn then we certainly don’t need to worry about the deregulation of employment law. I suspect however that making that happen will take more than ‘a bit of self-confidence’. We should at least give house room to the idea that Boris Johnson might win the next election. We shall see then – and in the years that follow – what his commitment to the ‘highest possible standards’ means when it comes to employment law.

Update: for a rather more authoritative critique of Larry Elliot’s article (very much from a left wing perspective) see N Contouris and KD Ewing, ‘Don’t be fooled – workers’ rights will suffer outside the EU,’


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Posted in BREXIT, Equal pay, Equality Act, EU law, Uncategorized | Tagged , , | 2 Comments

Dominic Cummings and a case of unfair dismissal

I have to admit I laughed out loud when I saw this headline in the Guardian

Adviser sacked by Cummings may have case for unfair dismissal – expert

Oh do you think so? Could it be that calling someone in for a meeting, sacking them on the spot and them having them escorted off the premises by an armed police officer does not comply with Acas code on discipline and grievance?  Whoever would have thought it?

I laughed again when I saw who the expert was. I was frankly expecting that some marketing department in a law firm had put forward a random associate to try to get some publicity off the back of all the Dominic Cummings news – but no. It turns out that expert is John Bowers QC.

For employment lawyers of my generation, John Bowers has near legendary status. A QC since 1998 – back when there were not many specialist employment law silks –  he is the author of more than a dozen books and the Principal of Brasenose College in Oxford. He is not sending his opinion out in a press release in order to boost his profile –  he must have been approached directly for his opinion. So due credit to Kate Proctor of the Guardian. When she asks for an expert view, she doesn’t mess about.

But the dismissal of Sonia Kahn obviously unfair and we don’t really need a leading QC to tell us that.  Assuming that Ms Kahn has two years’ service (she probably does, I doubt that her move from the regular civil service to a ministerial  adviser’s role in 2018 would have broken her continuity of employment) there is no way you could sensibly argue that the process adopted was reasonable in the circumstances. The point is that this fact will be a matter of supreme indifference to Dominic Cummings.

As John Bowers says in the article, a Tribunal judge would certainly hate the way in which the employer has behaved in this case. But I would be astonished if this case got anywhere near that stage. There will be a settlement agreement. Compensation will be agreed and both sides will move on.

The biggest limitation on our law of unfair dismissal is that it doesn’t even prevent employers from dismissing employees unfairly. Employers can basically do whatever they want and then worry about the costs later. Some employers will regard unfair dismissal compensation – limited as it is – as a relatively small price to pay for the ability to fire at will. Given the sums of money that Dominic Cummings is currently playing with I doubt he will break into a cold sweat when he hears how much the dismissal of a special adviser will cost the Government.

Of course an employee does not have to accept a settlement. If you are unfairly dismissed you are well within your rights to plough on through to the Tribunal in order to get a public finding in your favour. Any compensation you are awarded will then not be subject to the confidentiality clause that would inevitably be included in any settlement agreement.

But why would you want to do that? Taking your case through to a Tribunal can be a bruising experience and the outcome is never certain. It may seem obvious that Ms Kahn’s dismissal was unfair, but that does not mean that substantial compensation would be awarded. If the Tribunal found that Dominic Cumming’s accusations about her conduct were true then her compensation would be reduced to reflect her ‘contributory conduct’. Even if the Tribunal believed she was innocent there could still be a substantial reduction in the award if conducting a fair investigation and holding a proper disciplinary hearing with a right to be accompanied would have made no difference to the decision to dismiss.  An unfair dismissal claim is a speculative endeavour.

If you are a skilled professional with decent employment prospects then the rational response to being dismissed unfairly is to reach an agreement with your former employer and move on. Ideally the agreement would include terms that would cover how the ending of your employment would be explained to future employers that would not deter them from employing you.

All this means that there are some employers who can afford to ‘buy-out’ an employee’s unfair dismissal claim, while there are others for whom the prospect of being sued for unfair dismissal is an existential threat. Is that a problem? Do we need to make larger and more affluent employers actually comply with fair employment standards or is it sufficient that they are forced to compensate the employees that they treat unfairly?

If your answer is the former, then the solution would be to have a much more interventionist system where employers are actually prevented from dismissing without good cause or following set procedures.  In the Netherlands, for example, an employer often has to get permission from the court before an employee is dismissed. I don’t know how well this works in practice. I suspect that the parties often agree a termination my mutual consent rather than go through the legal process. In any event such radical reforms are simply not on the agenda for the UK – at least not while Mr Cummings is in charge.



Posted in Uncategorized, Unfair Dismissal | Tagged , , | 3 Comments

Reforming NDAs – why it won’t solve the real problem

The first thing to be clear about is that almost any settlement of a potential Employment Tribunal claim will include a confidentiality clause. This may be called a non-disclosure agreement or an NDA. If you are a journalist. the term you probably want to use is ‘gagging clause’.

If the parties are going to settle a case then they both need to be confident that the matter has indeed been settled and will not be resurrected in some other form. Where the case involves allegations of improper conduct then in most cases a party will only settle the case on the basis that those allegations – which may well be strenuously denied – will not be repeated.

Banning non-disclosure agreements is simply not an option in a system that encourages parties to settle employment disputes before they are heard by the Employment Tribunal. It is not going to happen.

So why have MPs on the Women and Equalities Committee called for NDA’s to be banned as reported by the BBC here?

Well they haven’t. The Committee’s report does not actually call for a ban. Instead it makes a wide ranging series of recommendations about how complaints of sexual harassment should be dealt with. Central to the report is a concern that there is an imbalance of power between an individual employee making a complaint and a large employer with the resources to fight that complaint aggressively, threatening the employee with costs if he or she (usually she in this context) refuses to settle the case on the terms being offered.

None of the committee’s recommendations involve NDAs being banned. Instead the Committee says that their scope should be more clearly defined and that employees should be entitled to proper advice – funded by the employer – as to what they can and cannot disclose under the agreement.  There should also be clampdown on employers and lawyers who use unenforceable confidentiality clauses to intimidate employees into silence.

Most of these recommendations seem sensible enough to me. In fact is difficult to see anyone having a real objection to them. As far as I am concerned they can join the list of employment law reforms to be made as soon as we have a Government able to concentrate on something other than Brexit or who the next Prime Minister should be.

Other recommendations are more difficult. To my mind the most radical is this one:

14.We call again on the Government to urgently improve the remedies that can be awarded by employment tribunals as well as the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages and there should be a presumption that tribunals will normally require employers to pay employees’ costs if the employer loses a discrimination case in which sexual harassment has been alleged. The bands in the Vento guidelines should be increased significantly to take into account the non-financial impact of discrimination. These changes should be made within the next two years. (Paragraph 67)

This would be a real game-changer. It gets to the heart of the imbalance between employee and employer in the Tribunal system. The uncomfortable fact is that bringing a Tribunal claim for harassment is so gruelling an experience that it’s a border-line irrational thing to do. The prospect of recovering legal costs and winning punitive damages if successful might well encourage some to proceed with a claim rather than settle for a modest pay-off with an NDA.

But there is little to no prospect of this proposal being picked up by Government. It isn’t realistic to expect the costs regime for sexual harassment cases to be different from that in other cases and if you make it normal for an employer to have to pay the successful employee’s costs, then the pressure would be overwhelming to make employees pay the employers’ costs if their claim fails. Making costs ‘follow the event’  –  so that the loser pays the winner’s costs – would transform the system, but it is not clear that this would be to the benefit of claimants.

Perhaps the real problem lies not in the individual features of the Tribunal system, but in the nature of the system itself.  If you believe that you have been discriminated against in the UK then enforcing your legal rights is down to you. You can hire lawyers to help you or you may be a member of a trade union that will back your claim, but you basically have to fight your own case.

The process is, by its nature, adversarial. There is little to encourage an employer to be introspective and consider where it might have gone wrong. Once it is being sued for discrimination it is likely to want to defend itself. That can mean defending those accused of harassment and attacking the honesty and motives of the claimant. Taking a case to a Tribunal can be horrible and I would never criticise someone for agreeing to accept a settlement – and the NDA that goes with it – rather than taking the case all the way.

We should also remember that being wrongly accused of discrimination is also horrible and it would be naïve to assume that it never happens. Many of the employers who reach settlements would argue that the confidentiality clause merely protects their managers from being subjected to further false allegations. Settling a case – even for a considerable sum – is not always a sign of guilt.

It is just possible that this adversarial process is not the best way to eliminate discrimination and harassment in the workplace.

An alternative approach might be to have a body that can carry out its own investigations into allegations of harassment and require employers to cooperate in eliminating unlawful behaviour. The Equality and Human Rights Commission could in theory fulfil that role, but it is currently set up and resourced more as a pressure group. The enforcement action it does take is limited to high profile investigations or intervening in landmark cases – it does not investigate individual allegations of discrimination against employers who are not in the public eye.

If the Government was really committed to eliminating harassment and discrimination it would be looking at revamping the Equality Commission to give it real enforcement powers that it could actually use. But this means spending money on a Quango and I don’t see any of the current candidates for Prime Minister being likely to commit to that. Instead we will see some tweaks to the law on NDA’s to provide better information and some safeguards against abuse. Politicians will then be able to claim that they have done something about the problem. But as long as the whole burden of fighting discrimination is placed on the victims, then well-resourced employers will still be able to buy their way out of trouble.


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Posted in Employment Tribunals, settlement agreements, Uncategorized | Tagged , , , | Leave a comment

New (and rather modest) proposals on pregnancy and redundancy

On a dull and extended train ride home last night I was perked up by a report that the Government was extending the rights of pregnant women. The report from the BBC (based on this Government press release) says:

The government proposes extending legal protection against redundancy for pregnant women for six months after they return to work.

There is a rhetorical sleight of hand here. What would you think ‘legal protection against redundancy’ meant? Weary traveller that I was, I thought the idea would be that it would be unlawful to dismiss someone for redundancy within six months of them returning from maternity leave. That would be a bold proposal. The law currently prohibits dismissing someone because of pregnancy or maternity, but does not prevent a pregnant employee from being dismissed for some other reason such as redundancy. ‘Legal protection against redundancy’ sounds like a major reform.

Of course in the cold light of day – and now that the actual proposals have been published – it turns out that the Government’s plans are much more modest than that. The clue is that the Government is proposing to ‘extend’ the legal protection – it is widening an existing protection, not creating a bold new one.

The existing right is Reg 10 of the  Maternity and Parental Leave Regulations 1999 which requires a woman being made redundant during maternity leave to be offered alternative work when there is a suitable available vacancy. The Government is proposing to extend that right so that it begins when the women informs her employer that she is pregnant and continues to apply for six months after her return. The Government also suggests making similar provision in relation to employees taking shared parental leave and adoption leave  – who currently enjoy the same right to preferential access to suitable alternative work during the period of their leave as women on maternity leave (see here for adoption leave and here for shared parental leave)

This is a perfectly sensible reform – but let’s not overstate its impact. The proposal would not stop an employer from making an employee redundant when she was pregnant, on maternity leave, or recently returned. It would simply mean that if it did so – and it had suitable alternative work available – then it would be obliged to offer her that suitable alternative work. In real life, this is not much of a change.  It would have an effect when the redundancy is part of a wider exercise in which a number of people are being made redundant and there is a limited number of suitable alternative vacancies available. The protected employee will then go to the front of the queue. But the real problem with redundancy and pregnancy discrimination is surely the ‘pool of one’ selection where there is no wider reorganisation and the individual employee is just told there is no longer a job for her. The employee might believe that the situation has been engineered as a result of her maternity leave, but direct evidence of that fact can be hard to come by.  In such a case there is no queue for her to go to the front of and if there was alternative work available – there usually isn’t – it would already give good grounds for a discrimination claim if she wasn’t offered it.

The consultation runs until the 5th April and you can respond here. As with all Government consultations we should not rely on swift implementation. Government my well be preoccupied with other matters come April!


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Of course vegans are protected by the Equality Act!

A vegan is claiming discrimination after being sacked from his job at the League Against Cruel Sports. The emphasis of the BBC story is on whether or not Mr Casamitjana’s beliefs will be protected under the Equality Act as a philosophical belief. There is to be a hearing next year to decide the issue and if he is successful then a further hearing will decide whether or not his dismissal amounts to discrimination.

The BBC describes the case as a landmark development, given that there has been no ruling from the courts so far on whether or not veganism can amount to a philosophical belief. To be fair, they are simply quoting the employee’s lawyer, who is obviously keen to talk up the significance of the case.  But I don’t see this as a landmark case at all. Of course ethical veganism is capable of amounting to a philosophical belief. I can’t imagine anyone arguing otherwise.

Simply being a vegan will not be enough to amount to  a protected characteristic, however. The practice of not eating animal products will need to be part of an overall set of beliefs about the rights of animals that achieve the level of cogency and seriousness necessary to qualify under the Act. But given that the courts have already held that the test can be met by a belief in man-made climate change (Grainger v Nicholson) or the proper and efficient use of public money in the public sector (Harron v Chief Constable of Dorset Police) it would be downright astonishing if it was held that ethical veganism did not qualify as a philosophical belief.

The problem that Mr Casamitjana is likely to face is not in establishing that he has a protected characteristic, but in establishing that he has been discriminated against. He has to show that he was dismissed because of his belief in veganism. According to the BBC:

Jordi Casamitjana says he was sacked by the League Against Cruel Sports after disclosing it invested pension funds in firms involved in animal testing.

If that is really how he is putting his claim then I don’t see how he can win. Dismissing someone for complaining about your pension fund investment strategy might be unfair – depending on the circumstances – but it is not the same thing as dismissing someone because of their philosophical belief. Is he really arguing that the employer would have allowed other employees to make the same complaints that he did, but that they have chosen to dismiss him because of the beliefs that prompted his behaviour? That seems pretty unlikely.

It is not as though it is only ethical vegans who might object to the activities of the pension fund or choose to complain about them. Surely the employer is just going to say ‘we would have dismissed anyone who behaved in this way’. Why on earth would they take a more serious view of the employee’s conduct just because it happened to be motivated by his commitment to ethical veganism?  Direct discrimination is a narrow right – as the Supreme Court has recently held – confined to cases where it is the protected characteristic itself that is the reason for the treatment, rather than some other factor that is merely connected with it.

For what it’s worth, I don’t see that this is a case of indirect discrimination either. Indirect discrimination isn’t a consolation prize you get when your direct discrimination claim has failed – it has its own particular requirements. There needs to be a ‘provision, criterion or practice’ (PCP) which causes a particular disadvantage to a group sharing a protected characteristic. Suppose in this case that there was a PCP amount to a rule saying ‘don’t complain about the pension fund investment strategy’. I struggle to see how that causes a particular disadvantage to vegans.  All sorts of people might have cause to complain about different aspects of the strategy and it is difficult to see what disadvantage you suffer by complying with the employer’s instruction and not making a complaint.

If I were advising the League Against Cruel Sports – and I’m not – I would tell them to concede that Mr Casamitjana has a protected characteristic and focus on their argument that they didn’t discriminate against him.  I don’t see the point in wasting time and legal fees arguing that vegans aren’t protected by the Equality Act when they almost certainly are. It might seem sensible to oppose every aspect of a claim that you are contesting, but I don’t think it would be a good look for the League Against Cruel Sports to argue that ethical veganism is not serious or cogent enough to amount to a philosophical belief. Better, surely, to concede that point and focus on the reason for dismissal.



Posted in Equality Act, Uncategorized | Tagged , , , | 2 Comments

Supreme Court finds no discrimination in ‘gay cake’ case

Well I think the Supreme Court got it right – probably. In Lee v Ashers Baking Company Ltd they hold that there was no discrimination when a bakery refused to bake a cake for a customer bearing the slogan ‘support gay marriage’. The decision overturns the previous findings of the Northern Ireland county court and the Northern Ireland Court of Appeal.

This is something I’ve written about before and I’m going to try not to be too smug about how closely my analysis back in 2015 is reflected in the leading judgment of Lady Hale (though it’s almost uncanny!). In this post I just want to set out the basic reasoning in the decision and respond in a general way to some of the online commentary I have seen criticising it.

There are two judgments given in the case. Lord Manse deals with constitutional issues regarding the role of the Supreme Court in cases dealing with Northern Ireland legislation. That is very much one for the purists – lets just say that he concludes that the Supreme Court did indeed have jurisdiction to hear the appeals.

The interesting decision is from Lady Hale, with whom the other judges agree. She divides the case into three key parts:

  • The first deals with whether refusing to bake the cake amounted to direct discrimination on the grounds of sexual orientation. That claim is based on the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 but it is clear that her reasoning applies equally to any similar case brought in the rest of the UK under the Equality Act
  • The second part deals with whether the refusal amounted to discrimination because of political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998. This is a piece of legislation that it unique to Northern Ireland. The Equality Act in the rest of the UK covers discrimination based on religious or philosophical belief, but that is different from the Fair Employment and Treatment Order. The Order specifically protects political opinion while the case law under the Equality Act stresses that a mere opinion (as opposed to a philosophical belief) is not protected.
  • The third part looks at the application of the European Convention of Human Rights. Specifically it considers the right to freedom of Religion and belief  under Article 9 and freedom of expression under Article 10.

Taking sexual orientation first,  Lady Hale points out that the bakery refused to bake the cake because of the message printed on it, not because of the sexual orientation of the customer. Anybody, irrespective of their sexual orientation, would have met with the same refusal from Ashers if they had attempted to make them bake a cake saying ‘support gay marriage’.

That of course is not the end of the matter. The question is whether the refusal was ‘on the grounds of sexual orientation’ not whether it was ‘on the grounds of the sexual orientation of the customer’.  The Regulations in Northern Ireland (and the Equality Act in the rest of the UK) are drafted widely enough to cover what we tend to call discrimination by association. But association with what?

There was no evidence that the bakery objected to the sexual orientation of any of the people with whom the customer was associated. In other words, if a straight man had tried to order the same cake for a party that would be exclusively attended by other straight people, then the bakers would still have refused to bake it.  Support for gay marriage was not confined to gay people and could not be used as a proxy for the sexual orientation of individuals. As Lady Hale put it:

“In a nutshell, the objection was to the message and not to any particular person or persons.”

The Court’s view, it seems, is that discrimination by association only covers association with other individuals who themselves have the characteristic. At the heart of direct discrimination is less favourable treatment because of the protected characteristic of a person – albeit not necessarily the person bringing the claim. Mere association with the concept of a protected characteristic is not sufficient. Now you might disagree with that approach (see this article by academic Paul Johnson) but ultimately the law is what the Supreme Court says it is, so there we are.

As for political belief, Lady Hale is less clear. She seems to think that the answer may be the same as with the sexual orientation point – that the bakers objection to the cake was not the political opinion of the customer of anyone else, but the fact that baking the cake involved them promoting a particular message that they objected to. It would have been quite different for example if the bakery refused to serve customers who were known to support gay marriage – but that is not what happened here.

On the other hand there is a much stronger association between the message on the cake and the political opinions of  the customer – and you could more easily infer that the customer shared the political opinion described on the cake than you could infer that he – or anyone else – was gay. On that basis she seems to accept that the refusal to bake the cake could in theory amount to discrimination based on political opinion (remember this is unlawful in Northern Ireland, but not in the rest of the UK) and then turns to consider whether a requirement to bake the cake would violate the human rights of the bakers.

Now I am not a human rights lawyer and I don’t feel qualified to critique Lady Hale’s approach here. But her view – and the view of the other members of the Court – is that being required to bake the cake would have meant that the bakers were being required to express a message with which they deeply disagreed.  Freedom of expression included the freedom not to express a belief and the requirement to bake the cake would have interfered with that right. No justification had been shown for compelling the bakers to express an opinion with which they disagreed and so the Court would in any event have interpreted the Fair Employment and Treatment Order in such a way as to find that there was no discrimination when  they refused to bake the cake.

There is an interesting thread on the Human Rights aspects of the case by Adam Wagner here but I would emphasise that the Supreme Court did not feel the need to refer to any human rights concepts when dismissing the claim of sexual orientation discrimination. It was only in the rather more uncertain realm of political opinion discrimination – which is unique to Northern Ireland – that they brought freedom of expression into the mix.

It is also worth stressing that this decision does not mean that businesses can refuse to provide their services to gay people – or that employers are free to discriminate against them. The Supreme Court has not carved out an exception from discrimination law to protect the right of people who have a religious objection to someone’s sexual orientation or (in Northern Ireland) their political opinion. What the Court has said is that direct discrimination is confined to the less favourable treatment of individuals either because of their protected characteristic – or the protected characteristics of other individuals. Discrimination law protects people rather than opinions. I think that that is right.

It feels slightly odd to be supporting a decision that has disappointed people whose world view I share and delighted those that I have little sympathy with. But on balance I think the Court’s approach is consistent with what the legislation actually says.

There is much more to pick apart in this case – and academics will be writing essays about it for years to come. I’ll certainly be writing and talking more on the subject and you can keep updated by subscribing to my newsletter. To see what I get up to in the nearest thing I have to a day job, please visit my website


Posted in Equality Act, Fair Employment, Sexual Orientation | Tagged , , , , | 6 Comments