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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Posted in pregnancy discrimination, Uncategorized | Tagged , , , | Leave a comment

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 , , , | 1 Comment

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

My Pimlico Plumbers Prediction (updated)

UPDATE: so the decision is out and it seems to be mainly Option 1 (see below). Lord Wilson’s decision does, I think, move the law on a bit when it comes to the right to send a substitute. When looking at that right it might be appropriate to consider whether personal service is still a ‘dominant feature’ of the relationship. However it remains to be seen whether this would work in a case with a clear and unambiguous substitution clause. On balance the law remains much as we already thought it was. 

It is also worth emphasising that this case really has nothing to do with the gig economy. Pimlico Plumbers (however this case eventually turns out) were providing reliable,  regular and well-paid work to their plumbers. True gig economy cases tend to turn on whether there is any obligation to provide work at all and this case says very little about that. In the Uber case that will be before the Court of Appeal later this year a key question is whether the drivers are working ‘for’ Uber at all – or whether they are working for each individual passenger. I don’t think anything said in this case is a game-changer when it comes to the gig economy cases currently making their way through the system.

I‘ll have lots more to say on where we now are with employment status in the June edition of the Range of Reasonable Responses Newsletter. You can subscribe to that here.

Tomorrow morning the Supreme Court gives its decision in Pimlico Plumbers v Smith. At issue is whether Mr Smith was ‘in employment’ for the purposes of the Equality Act and a ‘worker’ for the purposes of the right to paid annual leave. The Tribunal, the EAT and the Court of Appeal all said he was both. Were they right?

Now the problem is that I am away at the moment and in a different time zone. When I wake up on Wednesday the decision will have been out for hours and by the time I get back it will be old news.  So I thought I would get my opinion on the decision in early despite the slight disadvantage of not having read it. I hope that what follows covers all the bases (go Nats!) and when the decision comes you can just disregard the options that turned out to be wrong!

Option 1: The Supreme Court upholds decision on basis that Tribunal was entitled to find the facts as it did  

I knew this would happen. In fact I was surprised that the Supreme Court even agreed to hear this case.  Whether or not someone is a worker or an employee is largely a matter of fact for the Tribunal to decide. Once the Tribunal had found that Mr Smith was not running an independent plumbing business and had agreed to work ‘for’ Pimlico Plumbers the result was really inevitable. The employer’s argument that there was no obligation on him to perform the work personally was never going to work. Yes he could get another Pimlico Plumber to cover for him, but that is really just a form of shift swapping – not a right to subcontract the work. Nor was the Supreme Court ever going to be impressed by the suggestion that being able to bring a ‘plumber’s mate’ in to help with the work made a difference to his status.

The disappointing aspect of this decision is that the Court has not moved the law on – or even clarified how it works. But Judges don’t like saying something new if they don’t need to. All of the interesting legal arguments about personal service, mutuality of obligation and the potential difference between being a worker and being covered by the Equality Act were raised on Mr Smith’s side and he didn’t need to win those points to win the case. Pimlico plumbers were really just picking holes in the Tribunal’s findings of fact – and they were never going to get far doing that.

The upshot is that this eagerly awaited case is a bit of a damp squib. Important for Mr Smith, but not a game changer for the rest of us.

Option 2:  Smith wins and the Court takes the opportunity to significantly widen the scope of employment status

I had a feeling this might happen. When the Supreme Court gave Pimlico Plumbers permission to appeal on a case that seemed to turn on its facts, I thought that they might have been looking for an opportunity to move the dial on employment status. Just as I suspected, Lady Hale has delivered a decision that cuts through all of the tedious faffing about over the right to send a substitute and made it clear that just because a worker can send a substitute, that does not mean that he or she is free of any obligation to perform work personally. if the parties clearly expect that the work will usually be done by the worker then that is enough. This is a common sense ruling that, funnily enough, echoes one of the key recommendations of the Taylor Review. It would have taken the Government years to get around to doing what the Supreme Court has done with the stroke of a pen.

We should also all be grateful that the Supreme Court has made such a clear ruling on what is meant by ‘mutuality of obligation’ – particularly in the context of worker contracts. frankly the case law was getting really bogged down on this issue so well done to Lady Hale for putting the matter so clearly!

While this was not a case about the gig economy, it will certainly worry gig economy employers. The upshot is that you can no longer bung a substitution clause into a contract and rely on the fact that it will only be used by a small number of workers – and not very often. If I were Deliveroo, I’d be gearing up for another union recognition claim.

Option 3: Pimlico Plumbers wins and the Supreme Court asserts the primacy of the written contract

Just as I thought! I suspected that something was up when the Supreme Court gave Pimlico Plumbers permission to appeal. They had to think that there was a serious point of law being raised by the ’employer’. In this decision the Supreme Court has reasserted that the written contract is the place to go when determining the nature of the relationship between the parties. Looking at ‘what happens in practice’ only gets you so far and the clear terms of a written agreement can only be disregarded when they are shown (as in Autoclenz) to be completely at odds with what was actually intended by the parties at the time the contract was made. The contractual documentation in this case was not as clear as it might have been, but the Tribunal did not pay sufficient attention to it and a new Tribunal will have to look at the issue again.

This case will put pressure on the Government to carry through the reforms suggested in the Taylor review. Until that happens it is clear that gig economy employers will now find it easier to persuade Tribunals that those who work for them are independent contractors with no employment rights.

I think that just about covers it.

My feeling is that the first option is the most likely and that the case will be a bit of an anti-climax.  Option 2 would be the best result for the development of the law and is the one I’m rooting for. Perhaps it’s a bit much to hope that they will firmly stamp on the use of substitution clauses and sort out the current mess over mutuality of obligation, but I live in hope. Option 3 would be a victory for legal formalism over common sense and leave tens of thousands of workers without legal protection because of some obscure paragraphs inserted into a contract that they have probably never read, much less negotiated. I doubt the Supreme Court will want to do that, but you can never really tell until the decision is out.

Of course knowing my luck the decision will be some sort of hybrid of two or more of these options or some fourth option I haven’t thought of. When that happens I will take some comfort from having predicted that too.

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