The Case of the Generous McFlurry

Posted on September 28, 2012 by Darren Newman

Ask most normal people whether an employee should be sacked for one incident in which she put slightly too many sprinkles on a McFlurry and the most common answer will surely be ‘of course not’. It seems obvious that a decision to dismiss in such circumstances would be unfair and that the employee will win her unfair dismissal claim. 

Well it isn’t obvious, and she might not. 

The story is one of those with a clear human interest angle and so you can glean the facts of the case from a wide number of press reports including the Mirror, the Sun and the Mail.

Essentially, the claimant says that when she served a fellow employee with a dessert he said ‘make it a nice one’ and she sprinkled slightly more than the average number of chocolate pieces over the top of it. For that she has been sacked on the grounds of stealing food.

I’m not going to defend that decision. It seems very harsh, and a 19 year old employee with a previously unblemished record has certainly been put in a difficult position when it comes to future job applications.  I have every sympathy for her, and I wish her mother well in representing her at the Tribunal. If she is reading this, however, I hope she won’t mind if I give her some advice. 

Dear Mrs Finch

Welcome to the world of employment law. The best advice I can give you is not to let your own anger about Sarah’s dismissal get in the way of putting your case effectively. You are going to have to do more than persuade the Tribunal that the decision to dismiss was a harsh one or that Sarah did not intend to do anything dishonest. What matters is whether the dismissal fell outside of the ‘range of reasonable responses’ open to an employer. The question is not whether the Tribunal agree with the decision to dismiss, or even whether most fast food outlets would have dismissed – the questions is whether a reasonable fast food restaurant could have dismissed in these circumstances.

The employer is going to argue that if every employee were allowed to err on the side of generosity in a serving in order to please a friend or colleague then it would lose control of its stock, and its margins would suffer. That is an argument that the Tribunal will take seriously. An employer in this sort of environment is entitled to adopt a ‘zero-tolerance’ approach to issues such as serving size and treat any breach as gross misconduct. 

So, if you argue the case on the basis of ‘its just a bit of chocolate’or ‘its a trivial amount’ then there is a real danger that you will lose. A tribunal may well accept the employer’s point that when it comes to stock control there is no such thing as a trivial amount.  

The Tribunal is likely to have considerable sympathy with your daughter, but you need to give them a clear route to a finding of unfair dismissal. What you need to focus on is how effectively the employer communicated its incredibly strict approach to these issues. The question the Tribunal is likely to ask is ‘should an employee in Sarah’s position have understood that a generous helping of chocolate sprinkles would be a dismissable offence?’ So concentrate on the clarity of the rules, and whether it was expressly stated that they applied not just to whole portions of food, but also to servings that are not strictly measured like chocolate sprinkles.

It seems that there were notices up in the staff room – do those notices make it clear that it is gross misconduct to be a bit generous with portions, or do they just say that ‘theft’ of food will result in dismissal? If the latter, then you might have a strong argument that employees would not necessarily understand that to apply to an above average sprinkling of chocolate. But if the rules are very clear about how strictly they will be applied then you may struggle.

Of course, you can argue that this incident is so trivial as to be outside the range of reasonable responses, but this can be difficult. The Tribunal will be wary of substituting their own view of the case for that of a McDonald’s franchise owner. 

Best of Luck

Darren

I genuinely hope that Sarah wins her case. But the fact that this is not a given illustrates how limited a right unfair dismissal is. Perhaps the papers reporting (with some sympathy) the ‘Case of the Generous McFlurry’ could bear that in mind the next time they report (with even more sympathy) the complaints of the employer’s lobby that employment law is too much on the side of the employee. 

 

Posted in Unfair Dismissal | Tagged , , , , , , , | 2 Comments

Boris and the Ballot: why call for tougher strike laws?

Posted on September 17, 2012 by Darren Newman

The nation’s favourite Tory, Boris Johnson has called for tougher strike laws. In his Mail on Sunday interview Boris sets out an 8-point plan. It differs from other employment law proposals I’ve seen in that it has been prepared by someone who knows a thing or two about industrial action law. Boris has clearly been getting some help from an employment lawyer (hands up anyone?). What is most striking about the proposals, however, is that they aren’t really founded on any principle other than, ‘these strikes are annoying, lets make going on strike harder’.

I am not a particular Norman Tebbit fan, but in all fairness, the reforms that he spearheaded in the 80s were based on points of principle to do with democratic support for action and the need to avoid the intimidation of union members. It’s hard to discern a similar concern for principle behind the plans Boris is putting forward.

Strike ballot turn-out

Perhaps the proposal that comes nearest is that strike ballots should have the support of a majority of those entitled to vote, not just of those actually voting. I’ve written before about the argument for a minimum turnout in strike ballots; it’s a regular political gripe from the right.

However, if democratic turnout is really the issue then the solution is simple. Allow well regulated workplace ballots. Currently, all strike ballots are postal. The ballot papers must be sent out by post and they must all be returned by post. I’m rubbish at posting things even when I know they are important, so I can easily see why turnout in large postal ballots is often low. If workers could vote by putting ballot papers into a ballot box in the workplace you would solve the problem. But this isn’t really about solving a problem – its about drawing battle lines.

Even if strike ballots do lack democratic legitimacy, how much of a problem is that really? It’s old hat to compare the turn out in strike ballots with the turnout in the election of politicians, but here’s another point. Uniquely in democratic systems, the participants in a strike ballot are not bound by the result. The Londoners who chose not to vote for Boris Johnson do not get to opt-out of having Boris Johnson as their mayor. However, union members who vote against strike action, or who don’t bother to vote at all, have an absolute right not to take part in the action that results.

The right not to take part

The key right is not to be unjustifiably disciplined by the union. (S.64 of the Trade union and Labour Relations (Consolidation) Act 1992). Any action taken by a union against one of its members is unjustifiable discipline if the reason for it is that the member has failed to join or support any industrial action or shown any opposition to such action.

An individual member can sue his or her union for unjustifiable discipline or in the employment tribunal. Compensation can be awarded up to the maximum level allowed for unfair dismissal but there is a minimum award of  £8,100. That’s a minimum award of compensation which is £3,000 more than the median award for unfair dismissal!

That strikes me as being pretty good protection. The fact is that unions know that thy cannot run effective industrial action campaigns without the solid support of their members. If they lose that, the action just peters out.

Whether you agreed with them or not, you could make a decent argument to the effect that Norman Tebbit’s reforms worked. The left hated the ‘tory union laws’, but a large section of the public supported them because they saw that there was a genuine problem that needed to be addressed. In olden days there was a great deal of peer pressure to take part in action. I was growing up in a mining town during the miners’ strike of 84-85 (though obviously it isn’t a mining town anymore). I remember  armoured coaches being used to smuggle miners into work at a pit that had actually voted against a strike. Communities and families were divided; there was real fear and violence.

That’s not what we see when the RMT calls a one day tube strike and most of the trains run on time anyway. When civil servants strike, picket lines are tiny and many workers cross them without even noticing. There are no pitched battles or mass demonstrations. The argument that Boris puts forward about ‘psychological pressure’ is frankly pretty weak.

Those were the days…

His proposals are not aimed at a real problem with how strikes are organised and conducted. They are not designed to protect moderate union members because there is no evidence that they need protecting. They are just designed to make it harder to go on strike by increasing the legal obstacles in the way of a union trying to take action. There is also a whiff of nostalgia about them; an attempt to recreate the certainties and clear battle lines of the 80s; to summon up a little of that old Tebbit magic when Tories felt that they were fighting the good fight against the enemy within.

It might work with an audience of Tories at a conference, but I don’t think it will work with real people. If the Tories are persuaded to really push for these ideas, they will sound like aged rock stars at a Jubilee concert. You’ll remember that they used to be really ‘with it’ once but now just sound old and croaky.

 

Posted in Industrial action | Tagged , , , , , , , | 1 Comment

Guilty until proven innocent?

Posted on September 10, 2012 by Darren Newman

Today’s outrage against objectivity and rational analysis is brought to you courtesy of the founder and Director of Civitas, an independent ‘think tank’. David G Green has written an article in the Telegraph giving a pithy critique of the Equality Act 2010.

David G Green is not a fan of the Equality Act, regarding it chiefly as a vehicle for avaricous lawyers and dishonest employees to rob innocent hard working entrepreneurs of what meagre earnings they have managed to scrape together. This is clearly something about which Mr Green feels deeply. So deeply in fact that he has not felt the slightest need to learn anything about what the Act actually says before committing his rage to paper. His anger comes straight from the heart, not the head.

Nor is his anger merely the fleeting mood of a moment. Mr Green has felt this way from the very beginning, as this article from the Telegraph back in 2009 shows (thanks @Tribunalwatch – well spotted). There is some really bizarre stuff in the 2009 article which seems to confuse the concept of the burden of proof in discrimination cases with the definition of indirect discrimination and prays in aid Kipling and the Marquess of Queensbury rules. But that was 2009 and we have moved on now. I am happy to say that there are fewer errors in the new article – although, to be fair, it is also quite a lot shorter.

Now you may gather that I am not entirely sympathetic to Mr Green’s point of view. I happen to think that it should be unlawful, for example, for an employer to refuse to employ black people, or deliberately pay women less than men for doing the same job (call me an incorrigible lefty if you like). It seems that Mr Green does not agree. Fair enough, that is his right. He is entitled to his opinion. What riles me is not the extreme position that he takes, but the fact that in both articles he grossly misrepresents the burden of proof in discrimination cases. I know that seems to be a rather technical and prosaic thing to get worked up about, but there it is. This is the sort of thing that bothers me.

Lets focus on yesterday’s article. What Mr Green says is this:

Worst of all, the burden of proof in discrimination cases has been reversed so that once an accusation has been made it is up to employers to prove their innocence. The requirement that citizens should have to prove their innocence was imposed by the EU, contrary to our longstanding heritage of protecting citizens against false accusations by requiring accusers to prove their case. Innocent until proven guilty used to be the watchword of our judicial system – but not now that the EU has insinuated itself into our legal processes

Reading that paragraph over again, I think what really makes the red mist descend is not so much that he is wrong, but the lofty and supercilious tone that he adopts in denouncing the way in which the EU has perverted the principles of British justice – it really hasn’t. I’m also annoyed because Mr Green has not completely made up the concept of a reverse burden of proof, he has merely misrepresented it. The danger is that in explaining where he has gone wrong, I could end up writing a rather boring essay and it could look to the casual observer as though I am just being picky and that Mr Green’s general point stands. I’m not and it doesn’t, but there is obviously a risk that it will look like that to the casual observer. Luckily if you have got this far, you aren’t that casual, so here goes.

Proving Discrimination

We start with the problem. Nowadays, most employers are unlikely to wear their prejudices on their sleeve. If they are going to discriminate against someone,  they are unlikely to say ‘sorry love, but this isn’t really a suitable job for women’ or ‘we don’t want your kind round here, we only employ white people’. Every so often a case like this comes along of course, but they are quite rare. In general, direct evidence of discrimination is hard to come by.

So how can we spot discrimination when it does happen? It’s all about drawing inferences from the facts that have been proved. Even before the EU began to think about a reverse burden of proof, the UK courts had all but come up with the concept on their own.

The classic explanation comes from the case of King v Great Britain China Centre [1991] IRLR 513. Here the Court of Appeal distilled some general principles from the case law and said that where someone had been treated less favourably than someone of a different race (for example), then that might ‘point to the possibility’ of race discrimination. Lord Justice Neil  then said:

In such circumstances the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the discrimination was on racial grounds.

In other words, where facts are proved that indicate that discrimination may have taken place, the tribunal can look for an explanation from the employer of the difference in treatment. If that explanation is not believed by the tribunal, then the tribunal can infer that discrimination has taken place. From 1991 onwards, that was the standard way in which the burden of proof was dealt with in the UK. In formal legal terms the burden did not shift, but in reality an employer had to be able to demonstrate a non-discriminatory reason for a difference in treatment in order to defeat a claim.

Its worth stressing that this was nothing to do with any directive or ruling from the EU. Indeed the principle was developed in race discrimination cases which were not even covered by EU law at that time.

A shifting burden

The formal shift in the burden of proof came about as a result of the burden of proof directive in 1997, which has now been replaced by the Equal Treatment Framework Directive which says this:

1. Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment. (Article 10)

As a result,we do now have a shifting burden of proof under the Equality Act (S.136), but the key requirement is that the claimant must first of all prove facts ‘from which the court could decide, in the absence of any other explanation’ that discrimination has taken place. It is only if those facts are proved that that the burden shifts to the employer to prove that there was no discrimination. In its essentials, the process is not so very different from that described in King back in 1991.

If anything, the bar has in practice been raised somewhat, with the Court of Appeal in Madarassy v Nomura International plc stressing that the claimant must prove ‘something more’ than a mere difference in race (for example) and a difference in treatment. Just what that ‘something more’ needs to be is not completely clear and we are currently getting quite a lot of tedious case law struggling with the precise mechanism by which the burden of proof passes to the employer. On the whole, employers seem to be getting the best of it, but that is a different story. The fundamental point is that when Mr Green says

once an accusation has been made it is up to employers to prove their innocence

he is categorically completely and unarguably wrong. He was wrong in 2009 and he is wrong today. A mere accusation simply does not place any burden of proof on the employer, the claimant has to do much, much more than just make an accusation. All employment lawyers know that Mr Green is wrong and could explain to him where his mistake lies. They could show him the case law and highlight the key passages for him so that he could understand just how wrong he is.

I wonder if he would be grateful for that?

Because the thing about this sort of article is that the author – and the paper indulging him –  are not interested in getting the facts right. Mr Green is a clever man and I’m sure he could understand this subject if he chose to.  It seems almost as if he wants the law to be as unreasonable and un-British as possible, the better to denounce it. Any actual understanding of the subject would simply get in the way of his rhetoric.

Business deserves better

What makes me livid about this sort of argument is that ignorance of employment law is bad for business and Mr Green’s article practically revels in its ignorance; he luxuriates in it. Clearly he enjoys the fantasy he has dreamt up of the horrid Europeans forcing good old Blighty to sacrifice its ancient liberties. However, there is a danger that employers and business owners could read Mr Green’s article and assume that he knows what he is talking about – and that’s a depressing prospect. They will think that they will indeed be forced to prove their innocence whenever any accusation of discrimination is made against them, irrespective of its merits. That could lead them to settle cases that shouldn’t settle, or avoid making decisions that their business needs them to make because of their fear of a discrimination claim. Mr Green and the Telegraph would no doubt consider themselves to be on the side of British business, but by promoting a false view of employment law they do  British business a great disservice.

I know that there is a right-wing push on at the moment to weaken employment protection. I’m not too dogmatic about that and keen to have a rational debate about the issues. But can we at least start from a position of accurately assessing what the law currently is before we start hacking away at it?

Posted in Equality Act, EU law | Tagged , , , | 3 Comments

It’s not about banning crosses!

Posted on September 6, 2012 by Darren Newman

I’m not going to try to go through all of the media reporting surrounding the religious discrimination cases currently being heard by the European Court of Human Rights and correct the errors and misconceptions that abound. What would be the point? Nor am I going to predict what the outcome of the decision will be because I have no idea – let’s just wait and see.

Because there are four separate cases at issue here, and because we are talking about human rights law, this issue is more complicated than most. This isn’t one of those posts where I argue that actually this is all very simple – it just isn’t. There are some fine distinctions be be drawn and some complicated points to argue.

Could someone perhaps tell the Daily Mail that?

In fact can I just say the following to the press generally? THESE CASES ARE NOT ABOUT BANNING CROSSES!

If an employer specifically banned the wearing of a cross – as opposed to other forms of jewellery  then that would be direct discrimination and unlawful. There may be some exceptions to that (the dress code for a Rabbi for example) but to all intents and purposes, a ban just isn’t allowed. At some stage somebody will explain that to David Cameron and he will realise that a specific law on the point just isn’t needed.

In Chaplin and Eweida the issue was not that the employer banned crosses. The ban was on any necklace worn in a way that was visible (in Eweida’s case) or which could be grabbed by a patient (in Chaplin’s case). In each case, as far as the employer was concerned, it didn’t matter what was at the end of the necklace.

The Claimants are arguing that it should have mattered; that they should have been given special treatment because what was at the end of the necklace had a special importance to them.

I’ve said before that I think that Eweida should have won her case under UK law. I think the UK courts took too limited a view of indirect discrimination and should have held that even if she was the only person who was potentially disadvantaged by the BA dress code, that was enough to put BA under an obligation to justify the policy – which they clearly couldn’t do.

As for Chaplin, part of her case seems to be a general scepticism that the chain around her neck genuinely posed any health and safety risk. I’m no expert, but I think hospitals are entitled to be a bit fussy about heath and safety and I would be reluctant to overrule their judgement on the issue. Its worth noting that the majority of the Tribunal held that in any event the employer had done enough to try to accommodate Chaplin’s requirement by offering to allow her to wear the cross as a brooch or attached to her name badge. She refused because she argued that the necklace was an integral part of the item.

One of the things that frustrates me about this debate, however, is that people seem to pick sides – do you support Eweida and Chaplin or not? – and then argue that their side should win in the European Court of Human Rights.

There’s something odd going on here, because usually I would have thought that the Daily Mail would have been one of the first to complain if someone who had lost a discrimination case against a private employer should try get the European Court of Human Rights to rule that our domestic equality law breached the European Convention on Human Rights and had to be changed and made even more restrictive. That isn’t usually the sort of thing they are in favour of. Fip Chart Fairy Tales has covered this issue in some depth and is well worth reading.

Human Rights law is different from normal discrimination law. It has different principles and a different case law history. The Mail seems incensed that the UK Government is arguing that people could choose to resign if their religious beliefs conflicted with the needs of their job. But if we are dealing with human rights law then surely that is a relevant consideration? To what extent should human rights law restrict contracts of employment freely entered into? Normally it is papers like the Mail who are arguing that the human rights agenda has gone too far. Its a little odd to see them so sympathetic to cases that rely on overturning previous case law and extending the reach of human rights law in the workplace.

In legal terms, Eweida’s case is not so different from the case of Azmi v Kirklees which involved a Muslim teaching assistant wearing a veil whenever a male teacher was present. She lost her case on the issue of justification. There was less public clamour about that case which did not go to the European Court of Human Rights. At the time, the Daily Mail said this:

But there has to be give and take on both sides. And the bounds of common sense are stretched to breaking point when a Muslim teacher insists on the full veil, which inevitably makes it more difficult to communicate with her pupils.

Aishah Azmi?s insistence on her ‘rights’, even in inappropriate circumstances only serves to exacerbate community tensions

The sentiment behind this is not so very different from what James Eadie QC (for the Government) is quoted by the Mail as saying in Strasbourg:

‘Everyone has the right to express their beliefs, including the right to display religious symbols, but not an absolute right or a right without limits. That does not mean that in their professional sphere anyone can manifest their religious belief in any way they choose.’

I think its a bit difficult to disagree with that. If this case were concerned with a different religion, I think lots of people now supporting Eweida and Chaplin would think so too.

So even if you are sympathetic to Eweida and Chaplin, that should not mean that you want the ECHR to rule in their favour. The Daily Mail and those who have cheered the cases on from the sidelines should be careful what they wish for. If they win, then that will mean that it will be harder for employers to assert the needs of their business when there is a conflict with the religious needs of the employee. Very few of the cases which follow will be about cross wearing, because most employers simply don’t care about small necklaces. The cases will be about working time (sabbath observance, religious holidays), headscarves and veils, retail workers handling meat products or alcohol, or employees with a philosophical objection to a particular part of their job.

Then there are the other two cases – Ladele and McFarlane. Well, that’s a whole other can of worms. I’ll save that for the next post.

Posted in Religion in the workplace | Tagged , , , , , , , , | 1 Comment

Dominic Raab – A final exchange

Posted on August 28, 2012 by Darren Newman

If you haven’t read the last two posts dealing with my correspondence with Dominic Raab MP, then feel free to pass over this post too. However, once something has started you have to finish it, and this weekend I received a detailed reply from Dominic to my last email. I think we’re done now, but I set out below his response to me and then my reply.

I don’t agree with Dominic’s analysis, but I have to say fair play to him for engaging with the debate in the way in which he has. I shall watch his future career with interest! 

Anyway, here is his email to me, followed by my reply. After this I think we can all move on to the next thing to rant about.

Dear Darren

Thanks for your further email. I have thought about this a little further, and looked back over my report again. I would just make a few points.

First, I think as a legal expert you over-estimate the clarity and certainty of the law for the layperson trying to interpret it. I was struck by a recent Institute for Directors survey of 1,277 of its members that found 67% thought the government should do more to reduce business regulation, and 62% thought the govt had not done enough to simplify employment law – two of the biggest complaints made. Of course, you are right that there are a range of reasons that can be deemed fair and unfair. There are reasons for fair dismissal that employers can avail themselves for poor performing staff eg ‘capability’. But, I don’t agree that the law is as simple as you suggest. In fact, this area of law is quite detailed, complex and circumscribed – as the burgeoning text and practitioner’s books attest. So, just because you can point to precedents in the jurisprudence that show employers have grounds for dismissal in certain tightly-defined contexts, it doesn’t mean the law is clear for employers (or employees) in their day to day working lives. I know a lot of employment lawyers with a full range of clients. They invariably say that litigation in this area is acutely uncertain.

Second, aside from uncertainty as to the substantive law, there is also the burden of proof. As you know, the burden of proof is effectively reversed in employment cases and imposed on the employer to prove fair dismissal – rather than requiring the employee to demonstrate their claim of unfairness. That makes a big difference. As well as engaging in detailed legal argument, critically, the employer has to mount the case that dismissal is fair, rather than the employee demonstrating unfairness. That further magnifies the risk in defending even spurious cases.

Third, while this is burdensome for all businesses, larger ones with big HR departments are better able to navigate the law and procedures necessary to safeguard their position from abuse or spurious claims. Even then, the reality is that even if there is a very poor performing member of staff, they often leave with a much larger pay-off than they would be entitled to from a tribunal. This is regular and standard practice. Why? Because, for a large share of employers it is just not worth the hassle and cost to defend meritorious cases. Almost by definition, those are claims or cases that don’t go to tribunal.  If that is true in larger businesses, it is a major factor for Small and Medium-sized Businesses. And that’s the rub. That fear of litigation or being straddled with a poor performing worker has a chilling effect on small businesses from hiring in the first place. As qualified solicitor myself, I hope you don’t mind me saying that we lawyers are rather too quick to blame those interpreting the law for being over cautious or ill-informed – as you say in your last email. The fact is that the employment rules that look clear to you and other experts look like a regulatory and litigation nightmare for even a conscientious employer (especially a small business owner).Bearing in mind a large proportion of new jobs created in the economy come from SMEs, that is a very real worry. In all of this, my overriding policy priority is to see more jobs created, and thereby cut unemployment especially youth unemployment (still over 20%).

Fourth, you say my evidence only comes from employers. That’s not strictly true, although the evidence from employers (especially small business owners) is substantial. But, it also has a debilitating impact on staff morale when coasting or under-performing staff take the firm for a ride. I have seen that in various contexts, and the frustration is understandable. Let’s be honest, it is not the kind of thing the unions or employers groups advertise. But, in my experience hard-working employees tend to resent firms being saddled with poor performing colleagues as much as the ‘bosses’.

Likewise, you argue that the so-called reformers are misleading the debate. Be honest about this. Those defending the status quo are often just as misleading in their description of employers. Yes, there are always two sides of the story in a work-place dispute. However, the lazy caricature of miserly and mean employers ready to fire on an arbitrary whim grossly distorts this debate. The reality is that it is entrepreneurs, small businesses and employers who are the ones who will drive business growth and create the jobs we need in Britain.

Fifth, I agree with you that the debate over Beecroft was rather polarised and misleading – but not only for the reasons you say. As I spell out in my report, the issue of unfair dismissal is one of balance and degree. As it happens, I never advocated the Beecroft recommendation on no fault dismissal, but rather a variation – and there are many other shades of grey. But, is it your view that the law as currently configured is perfect? Are there no changes you think would be reasonable either to the substantive law or procedural hurdles before the employment tribunal? Did you oppose the extension of the initial period before which an unfair dismissal claim can be brought from 1 to 2 years? That was arguably a much bigger practical change. Do you oppose measures to encourage early filtering out of vexatious or spurious claims? I may be wrong, but I suspect from your emails that – because you rather casually dismiss the perspective of businesses and employers – you advocate defending the status quo. Or perhaps you think employee protections should be increased? It is entirely respectable to take up either position. But, I just wasn’t clear what your position was on the substance of the debate, or on what basis.

I wanted to give you a more thorough reply. I suspect we will not reach a common agreement on this, but I am grateful for the chance to engage with you on this. Please forgive me if I don’t have a chance to respond to any subsequent reply – but rest assured that I will read it with great interest. As the great John Stuart Mill used to say, he who knows only his side of the case knows little of that!

All the best, Dom Raab

—

Dear Dominic

Once again I’m grateful for you taking the time to reply to my email, and in particular for doing so in such depth – very much beyond the call of duty. I appreciate that you don’t have the time to continue this correspondence indefinitely but I did want to address the specific points that you make.

We may just have to differ over how clear the law is when it comes to dismissals for poor performance. However, I do acknowledge that the subject is not well or easily understood by non-specialists. That is why it is so important that it is explained clearly. Rather than change the law in this area – so that employers have some other form of words to be confused about – surely it would be more productive to explain the current law properly so that both employers and employees understand it? That process is not helped by extravagant claims made in the press about how the current system is weighted against employers.

I am less impressed by the IoD surveys than you are. Any poll asking the question ‘Has the Government done enough to X’ seems to me to be likely to get a negative response. As to the simplification of employment law, I am actually surprised that the figure is as low as 62% – after all the government hasn’t really simplified employment law at all has it?  The two year qualifying period (to which I was moderately opposed) does not really simplify the law and the current Enterprise and Regulatory Reform Bill will make the employment tribunal process considerably more complicated (just try reading the new provisions on time limits in Schedule 2). For me, simplification is a bit of a red herring. Whenever a lobby group (on either side of the debate) puts forward a proposal for simplification they usually simply want to shift the balance of the law more in their favour. Let’s concentrate on employment law being well drafted rather than simple.

I do agree, however, that litigation in employment law is inherently uncertain. This is the nature of the system that we have and the desire to keep the process informal (relatively speaking). I am not defending the Employment Tribunal system at all and would be happy to see proposals for radical reform. However that does not mean that the law of unfair dismissal is other than as I have described it. Even if the law was changed to reflect your proposals, that uncertainty would remain. Indeed, as the system would be dealing with a newly drafted law, for which no case law had developed, the process would be even more uncertain.

On your burden of proof point, I hope you will forgive a technical answer. In unfair dismissal cases the burden is placed on the employer to show the reason for dismissal and that it was a reason falling within one of the list of potentially fair reasons for dismissal – conduct, capability, redundancy, statutory ban or ‘some other substantial reason’. This should be a very easy burden to discharge as the employer can usually explain why the employee was dismissed. The main issue in an unfair dismissal case is whether the employer has acted reasonably, and here there is no burden of proof (See S.98(4) Employment Rights Act 1996). The burden was once on the employer to demonstrate reasonableness but this was changed by the Employment Act 1980 so that the burden was ‘neutral’. That Act also introduced the requirement for the Tribunal to consider the ‘size and administrative resources’ of the employer’s undertaking when considering fairness.

There is a reverse burden of proof in discrimination cases, but that is a whole other can of worms.

It is worth noting here that the courts have developed a test for fairness which is extremely employer friendly. The ‘band of reasonable responses test’ gives a huge amount of discretion to the employer to determine whether dismissal is appropriate or not. For this reason, most unfair dismissal findings are to do with procedural unfairness only and yield the employee very little in terms of compensation.

I think there are a number of reasons why employers make pay-offs in excess of likely tribunal awards. The cost of defending even a spurious claim is certainly one of them. However, such offers are also made to avoid any obligation to behave reasonably, or because the employer acknowledges that it has failed to manage the situation appropriately and wants a clean break.

I quite agree that the fear of litigation has a negative effect on small businesses. That is why it is important that we do not make out that the risk is greater than it really is. I don’t blame businesses for being overcautious or ill-informed. I blame the poor legal advice they are often given. It is easy to advise an employer that they can’t do something and then blame the law rather than the inexperience or ignorance of the adviser. The current debate about red-tape plays into that ignorance because it stresses the risks that employers face and plays down the extent to which they can in fact do what they need to do.

I also agree that employees are adversely affected when their employers fail to deal with poor performance on the part of one of their colleagues. I too share their frustration. But poor management is to blame for this just as much as any perceived problems with the law. Every single organisation I speak to admits that it has a problem in persuading line managers to challenge poor performance in an appropriate way. This is not a problem with the law, it’s a problem with our culture and a very British aversion to having difficult conversations. Improving performance management skills would do more to help British business than any number of employment law reforms.

I certainly don’t believe that current employment law is perfect. There is a huge list of changes that I would make given a free hand. Far from defending the status quo, I would like to see some radical reform. At this point I could set out a whole manifesto of changes that would make the world of employment law a much better place. By no means all of these changes would shift the ‘balance’ towards employees. I pride myself on being independent;  I don’t serve the vested interests of either side in this debate.

The danger of reforming employment law, however, is the instability that results from any new piece of legislation – even if it purports to make things simpler for employers. Much as I would like to rewrite the statute book, I think business benefits from stability. That is why I think that any proposal for reform must at least be based on a sound analysis of the law as it currently is, rather than be designed to deal with a perception, or to create the impression that politicians are responding to the pressures put on them by the business lobby.

Ultimately, I think that the problems that you have identified with the law of unfair dismissal are more to do with the way in which the law is perceived than what it actually says. The right course, to my mind is to put more effort into explaining to both sides how the law really works. I initially wrote to you because I felt that the proposals you were making, and the way in which you made them actually made that task harder. I still do.

Having said that, I have enjoyed our correspondence, I do appreciate the way you have engaged with the debate. I look forward to reading your book!

Kind Regards
Darren

Posted in Beecroft, Uncategorized | Tagged , , , | 1 Comment

Update: Dominic Raab’s Reply

Posted on August 24, 2012 by Darren Newman

Yesterday I wrote to Dominic Raab MP about the current debate on ‘no fault’ dismissals. I quoted a paper he wrote late last year where he made some pretty suprising claims about the current state of the law on dismissals for poor performance.

I was a bit surprised late last night to receive a reply from him. Here it is:

Darren

Thanks for your email.

We will have to agree to differ on this. I have had an enormous amount of feedback from employers based on practical experience that directly rebuts your legal analysis. Whatever the law books may or may not say in theory, employers are being taken for a ride in practice.

Best wishes, Dominic

Well as an argument, that sounds pretty familiar. Here’s my reply. 

Dominic

I really appreciate your taking the time to reply to my email so quickly. I didn’t expect us to agree on what the law of unfair dismissal should be. However I am surprised that we can’t even agree about what the law currently is.

The analysis I put forward is not some theoretical model that I’ve extracted from a text book. Employment law is a practical subject, and I have many years of experience giving practical advice to real employers about how they can manage people within the law. I described the law correctly and if any Tribunal applied a different standard then I would expect that to be challenged on appeal. It is noticeable, however, that this is not an area that generates much case law. This is good evidence, I think, that the Tribunals are applying the accepted standards that have been a settled part of the law for decades.

The ‘feedback’ that you have had from employers is not a sound basis for a change in the law. The reasons for this should be obvious. First of all, there are two sides to every story and I note that your evidence comes from the employer’s side only. Secondly, I too have spoken to employers who feel they have been ‘taken for a ride’ but the case has rarely reached the Employment Tribunal. They may have received over-cautious legal advice, or poor internal advice. Line managers often fail to deal with poor performance because they feel awkward and embarrassed about bringing the subject up. Could it be that when senior managers later want to know why an issue was never addressed, the ‘law’ is a convenient scapegoat? Obviously if you have actual Tribunal decisions to back up your argument then that is a different matter. These are public documents. If you give the appropriate reference, we can all read them and see if there is a real problem here.

I confess to finding it frustrating that the critique of unfair dismissal law used by those promoting the ‘Beecroft’ proposals is so very general and non-specific. We are told that the law is too onerous, but never told just what it is about the law that is unreasonable. Is it the need to give the employee a warning before dismissal? Is it the frustration of having to allow an employee a reasonable chance to improve?  I wrote to you because you made specific claims about what the law currently says and gave an employment law text-book as your source.  It is a shame that when challenged on the specifics, you fall back on the familiar, generalised, appeal to anecdote that tends to characterise the debate on this topic. I think we are entitled to a more rigorous approach from those who are proposing a significant change in the current law.

All the same, I appreciate your reply.

Kind Regards

Darren

I suspect that the correspondence ends here – although I’ll post any further reply that i get.

What do we learn from this? There is still work to be done in making sure that employers understand how employment law really works. My view remains that unfair dismissal law needs no major reform. Instead, employers need to understand that behaving reasonably does not mean running away from awkward conversations, or putting up with a job being done badly. Employers are entitled to insist that a job is done well. However they are not entitled to dismiss employees on a whim without giving them a fair opportunity to demonstrate that they can work to the required standard. Those promoting the ‘Beecroft’ agenda would probably deny that that is the result that they are after – but beneath the generalisations and the anecdote, we should be clear that that is what they are proposing. 

Posted in Beecroft | Tagged , , | 2 Comments

An Open Letter to Dominic Raab MP

Posted on August 23, 2012 by Darren Newman

I was minding my own business when @FlipChartRick (thanks!) sent me a link to a Centre for Policy Studies paper by Dominic Raab MP calling for some employment law reforms. I had ignored the story when it came out because its pretty obvious that right wing MPs would like employment law to be tilted more towards employers. I disagree with them , but what can you do? 

Still, I read the paper and was particularly struck buy what Mr Raab says about how the law currently works in relation to dismissals for poor performance. In fact I was so struck by what he said that I’ve actually written to him about it.

Here’s the letter, I’ll let you know if I get any reply.  

Dear Mr Raab

I am writing to you having read your paper ‘Escaping the Straightjacket’ which makes a number of proposals for employment law reform.  For the past 20 years my career has essentially been about explaining employment law to businesses – both HR professionals and line managers – and I have also had considerable experience in advising small businesses on employment law issues.

One of my frustrations is that there is a great deal of misunderstanding about just how employment law operates and what employers can and can’t do. I find that when employers are given accurate information about employment law, they can accept that in most areas it represents a common sense balance between the needs of employers and the right of employees.

In recent months, however, I have become increasingly disappointed with the level of public debate on employment law issues – and in particular on the concept of a ‘no-fault’ dismissal put forward in the Beecroft report. My concern is that in putting the case for a no-fault dismissal Beecroft and his supporters have suggested that employers are currently prevented from dismissing under-performing employees by the law of unfair dismissal. Any such suggestion is misleading.

It is in this context that I would like to challenge your proposal for ‘no fault dismissals’ on page 6 of your paper. In particular, this passage:

 “A better solution would  be to run “no fault” dismissal in parallel with unfair dismissal, with both applying after a worker has been employed for two years. It should still be possible for an experienced employee to makes a claim for being sacked unfairly. However, the definition of fair dismissal should be widened, for example, to encompass inadequate performance which falls short of the current standard of inherent inability or neglectful incompetence, to allow greater scope for “no fault” dismissal for underperforming employees.

Introduced in this way, “no fault” dismissal would help employers get the best from their staff. Despite critics’ protests, it would only affect the small minority who do not pull their weight. Few employers are interested in getting  rid  of  good  employees.  If  we  want  to boost the overall number of jobs available, firms  should  be  able  to  hire  with  greater confidence that they will not be burdened with incompetent or underperforming workers.”

It seems that the premise for your proposal is that it is not currently possible to fairly dismiss an employee for ‘inadequate performance’ and that a fair dismissal is only possible if it can be shown that the employee is inherently unable to do the job or has exhibited ‘neglectful incompetence’.

Anybody with any experience or knowledge of employment law, however, could tell you that this is simply not the case. Indeed I am rather puzzled as to what could have led you to make such an assertion. Your footnote contains a reference to Selwyn’s Law of Employment (a leading undergraduate textbook) but does not refer to any specific case law to that effect.

The truth is that it is perfectly possible to fairly dismiss an employee whose performance is judged by the employer to be inadequate. Indeed such dismissals are common. The law of unfair dismissal requires that the employer behaves reasonably in dismissing the employee and in the context of poor performance this will usually mean clearly explaining the ways in which the employee’s performance is falling short. The employee should be warned that his or her performance could lead to dismissal and be given a reasonable opportunity to improve.

All of these requirements must be considered in the light of the particular circumstances  and the employer’s business needs. For example, it may be perfectly fair to give no opportunity to improve where the employee’s performance is actually damaging the business, or where the employee is ‘inherently unable’ to do the job. Perhaps the references to ‘inherent inability or neglectful incompetence’ that you picked up from Selwyn were in the context of dismissals without warning or any opportunity to improve? Do you think that the current requirement (in most cases) for a warning and an opportunity to improve is an unreasonable one?

These principles of fairness are well understood by the HR profession. In my experience, what tends to stop employers from dealing with poor performance is not in fact any legal restriction, but rather a very human aversion to having difficult conversations with underperforming employees. That is not a problem that legislation can solve!

I can see the political benefits in overstating the extent to which employment law prevents a business from dealing with underperformance.  Doing so makes the Beecroft proposals seem less extreme. However, this constant drip-feeding of misleading information about employment law does a disservice to the very businesses you are trying protect. Small businesses may not have access to sound advice, and if they read in the press that they can’t dismiss an employee who is performing poorly then they are likely to believe that that is actually true.

I hope therefore that you will be able to correct that part of your paper which suggests that underperformance cannot for the basis of a fair dismissal. I am posting a copy of this letter on my blog ‘A Range of Reasonable Responses’ and will happily undertake to publish any reply you might care to make to the points that I have raised.

I look forward to hearing from you

Yours Sincerely

Darren Newman

Posted in Beecroft | Tagged , , , , , | 4 Comments

Another red-tape scare story from the Telegraph

Posted on August 13, 2012 by Darren Newman

Today we have another ‘mad rules imposed by Brussels’ story that the Telegraph loves so much . Take a look at this article with the headline ‘New EU employment ruling could stifle British business’ Our old friend Louisa Peacock informs us that

Under rules, being drawn up by Spanish MEP Alejandro Cercas, employers planning job cuts will have to measure the “psychosocial health” of staff before and after laying off people. If there is a significant deterioration in workers’ mental health and well-being, companies would be forced to offer retraining, coaching on interview technique and general help with finding a new job as a compromise for letting them go.

Companies also face having to outline the impact of redundancies on the local community, including how they would regenerate the area if significant job cuts meant thousands of local people were suddenly out of work.

The proposals, which were voted through the European Parliament last month, are yet another example of the deluge of “burdensome” and “ridiculous” laws flooding Britain’s way from across the continent, according to manufacturers’ body, the EEF – at the very time that UK policymakers are trying to scrap red tape

So I thought I’d try to find this new law. This is my area after all, and if there is a big new law on redundancy coming then I really ought to start reading up on it. I dug around in the online resources of the EU and found the proposal that the article is talking about. You can read it here. Don’t feel obliged to read it all however because it’s very long and boring. The ‘psychosocial health’ point is at the bottom of page 14. It’s by no means the most important part of the draft directive – as far as I can tell; it is very boring – but you can see why the Telegraph would seize on it. Just the sort of politically correct nanny-state clap trap that they love to complain about.

But before I throw up my hands in horror at a new piece of legislation there is one thing I want to know first. Is this actually going to happen?  All sorts of mad ideas get proposed and debated – in Westminster as much as Brussels. But my brain is becoming increasingly full in recent years and it now only has room for laws that are actually going to be adopted.

This is where the Telegraph article is seriously misleading. Although it does refer to the new law as ‘draft’ it does rather give the impression that it is certainly coming into force. It has, after all, been ‘voted through’ by the European Parliament.

Well, no. It hasn’t. And even if it had, that would just be the beginning of the story.

The process for handling this proposal is neatly set out here. The proposal was announced in the European Parliament in April and is scheduled for a vote in a plenary session in November. The Telegraph article says it was voted through last month, but I cannot find any record of this in the July proceedings of the Parliament and the timetable currently available makes it clear that it is still awaiting its first reading.

Of course we know what a lefty bunch the European Parliament are. They are bound to vote it through aren’t they? Truthfully, I have no idea. Maybe they will, maybe they won’t. I don’t care because even if they vote it through with no amendments it still won’t become law.  Directives have to be proposed by the Commission and adopted by the Council. The European Parliament cannot force the Commission to propose legislation.

This proposal is being brought under the ‘own initiative’ procedure. That allows the Parliament to request the Commission to propose legislation. Under Article 225 of the Treaty the Commission must then either  submit a proposal or (drum role) inform the Parliament of its reasons for not doing so.

As far as I can tell the Commission has not made any comment on this proposal so far, so there is no indication of whether it would agree to submit a proposal even if the Parliament asked it to.

And even if it did, that would just be the start of the process. We would then have years of consultation with the social partners, and horse-trading between the member states before a final text was arrived at which would then have to be voted on by the European Parliament.

In other words. This is probably not going to happen. If it does happen, it will take years to agree.

But saying that wouldn’t suit the narrative would it? The Telegraph could hardly write an article saying ‘there is some debate about whether a new directive on restructuring should be adopted, but this is at its very early stages, may not happen at all and it is highly unlikely that the current draft will remain unaltered: check back in a year or two to see if there’s any progress’. I’m probably just being hopelessly old-fashioned to expect the Telegraph to actually explain what it is happening rather than just have a lazy rant about Brussels.

File this one under ‘red tape scare story: no need for concern’

(Thanks to @FlipchartRick and @HRBullets for spotting the article) 

 

Posted in EU law | Tagged , , , , , | 1 Comment

Eweida v British Airways: let’s stick to the facts

Posted on July 11, 2012 by Darren Newman

The case of Eweida v British Airways was mentioned in Prime Minister’s questions on 11th July. The Telegraph is reporting that the Prime Minister promised to change the law if she loses her claim before the European Court of Human Rights.

Well perhaps. Here is the exchange from Hansard:

Mr David Davis (Haltemprice and Howden) (Con):On 4 September, the European Court of Human Rights is hearing the case of Miss Nadia Eweida, the lady who lost her job at British Airways for wearing a crucifix as a mark of her Christianity. The behaviour of BA in this was a disgraceful piece of political correctness, so I was surprised to see that the Government are resisting Miss Eweida’s appeal. I cannot believe that the Government are supporting the suppression of religious freedom in the workplace, so what are we going to do about this sad case?

The Prime Minister:For once, I can say that I wholeheartedly agree with my right hon. Friend. I fully support the right of people to wear religious symbols at work; I think it is a vital religious freedom. If it turns out that the law has the intention as has come out in this case, we will change the law and make it clear that people can wear religious emblems at work.

Reading the Prime Ministers words, I’m not quite sure what he has promised. But I suspct he will come to regret creating what may turn out to be a hostage to fortune. This case is likely to get a lot of coverage between now and the case being heard by in September and much of it will be misleading. I count three factual errors in David Davis’s short question alone.

One of the problems is that there is so much spin put on the case by those with an axe to grind (on both sides of the debate) that it is sometimes easy to lose sight of what the case is actually about. It is worth revisiting the findings of fact made by the Employment Tribunal and quoted by the Court of Appeal:

3.1 The claimant, who is a devout practising Christian, has worked part-time as a member of check-in staff for the respondent since 1999. As her job is customer facing, she is required to wear uniform. As the respondent operates a 24 hour operation throughout the year, she is required to work in a shift pattern. The claimant complained of a number of incidents between 2003 and 2006 which she said showed anti-Christian bias on the part of the respondent.

3.2 Until 2004 the claimant’s uniform included a high necked blouse, and she wore a silver cross on a necklace underneath the blouse when she wished to. Starting in 2004, the respondent introduced a newly designed uniform, which we call the Macdonald uniform, which included provision for an open neck, but which prohibited the wearing of any visible item of adornment around the neck. Between 20 May and 20 September 2006 the claimant came to work on at least three occasions with the cross visible under her uniform. When asked to conceal it she did so. When on 20 September she refused to conceal the cross, she was sent home.

3.3 The claimant remained at home, unpaid, from 20 September until the following February. She initiated and pursued the respondent’s grievance procedures. A storm of media attention, much of it hostile to the respondent, led the respondent to reconsider its uniform policy and to introduce an amended policy on 1 February 2007. The amended policy permitted staff to display a faith or charity symbol with the uniform. The claimant returned to work on 3 February 2007 and is still employed by the respondent.

I carry no torch for British Airways. I instinctively dislike strict dress codes and uniforms. If I am checking in for a flight I care much more about the speed of the process and what sort of seat I get than I do about what the check-in assistant is wearing. I am not going to claim that British Airways has handled itself well.

But let’s get a few things clear about the facts of this case.

British Airways did not ban the wearing of a cross (call me Mr Picky, David Davis, but it was a cross – not a crucifix). The rule that Eweida fell foul of was a rule against any jewellery worn visibly around the neck. She was free to wear her necklace covered up by the cravat that was an optional  part of the uniform – just as she had worn her cross under her uniform between 1999 and 2004! In fact it appears that she followed the uniform requirement for two years before it became a problem.

BA’s policy did not require Ms Eweida to act contrary to her religious beliefs. The Tribunal found the following:

33.4. The tribunal heard evidence from a number of practising Christians in addition to the claimant. None, including the claimant, gave evidence that they considered visible display of the cross to be a requirement of the Christian faith; on the contrary, leaders of the Christian Fellowship had stated that, “It is the way of the cross, not the wearing of it, that should determine our behaviour”. (R1, 780). The claimant’s evidence was that she had never breached the uniform policy before 20 May 2006, and that the decision to wear the cross visibly was a personal choice, not a requirement of scripture or of the Christian religion. There was no expert evidence on Christian practice or belief (although that possibility had been canvassed at the PHR in June). (my emphasis)

We should also bear in mind that the fact that Ms Eweida wanted to wear a cross as opposed to some other sort of necklace was – as far as British Airways was concerned – purely incidental. Whatever drove BA to adopt and enforce the rule against Ms Eweida it was categorically not ‘political correctness’.

The case was about BA’s refusal to treat Ms Eweida as an exception and allow her to wear the cross because of the meaning and importance it held for her. BA did allow for religious exceptions to their strict dress code, but only for ‘mandatory’ scriptural requirements where the item in question could not be worn under the uniform. Ms Eweida complained that this allowed Muslim women to wear a headscarf but did not allow her to wear a cross. However anyone who knows anything about discrimination law can see straight away that this is not comparing like with like. A cross can be worn under the uniform and a headscarf cannot.

You may be surprised to learn that I think she should have won a claim of indirect (rather than direct) discrimination. I disagree with the EAT and Court of Appeal over the issue of whether a claim for indirect discrimination can be made by someone who may be the only person with a particular belief. That’s a very technical argument, however, and I won’t go into it here. Anyone interested should look at my article in the February 2012 edition of the Equal Opportunities Review (Subscription required I’m afraid, but I’ve got to earn a living somehow).

However, not every act of indirect discrimination is a breach of human rights. Politicians who support her claim in the ECHR just because they think she should have been allowed to wear her cross over her uniform should be careful what they wish for. An excellent explanation of the implications of her winning her case can be found on the Flip Chart Fairy Tales Blog (with a fun debate about discrimination and human rights law in the comments thread).

I’m not a human rights lawyer and for all I know, Eweida will win her case before the ECHR – although as I understand it that will involve something of a departure from their approach in previous cases. If she does win, I doubt the Government will be happy with the consequences.

Of course it now appears that if she loses, the Government will be honour bound to change the law. When they see what that involves and consider some of theimplications, they won’t like that option either.

 

Posted in Religion in the workplace, Uncategorized | Tagged , , , , , , | 3 Comments

Guest Post: Is the ET backlog really a problem? – by Anya Palmer

Posted on June 26, 2012 by Darren Newman

I’m tremendously pleased to host this guest post from Anya Palmer a barrister from Old Square Chambers. As a leading employment law practitioner Anya is ideally placed to look at the how the press reports the workload of Employment Tribunals and compare that to what is ‘really going on’. 

Damn statistics

Is the employment tribunal backlog at a record high?  Is the employment tribunal system “completely overstretched”?  The Telegraph would have you believe it is so.

One in four tribunal cases takes more than three years to resolved, claims their Jobs editor Louisa Peacock and she bases this on “official figures” Here are the figures she relies on.

“One in four tribunal cases takes more than three years to resolve, official figures show in fresh evidence of the ‘completely overstretched’ system…

The latest figures from the Tribunals Service show there were 530,400 outstanding employment cases at the end of 2011 – a 17pc rise on the same period last year, and an increase of 23,600 cases on the previous quarter.”

Half a million cases outstanding?  That’s terrible!  Why weren’t we told?

Well, let’s look at the evidence.  Described as “fresh”, the relevant figures were in fact released by the Ministry of Justice three months ago and are freely available here: http://www.justice.gov.uk/statistics/tribunals/quarterly (first Excel file, called Tables, published on 28 March 2012).

If you turn up table 1.3 (Tribunals Caseload Outstanding by Jurisdiction) and focus on the Employment Tribunal figures, in particular the breakdown between single and multiple cases, a rather different picture emerges: 

                    2009-10   2010-11                                                       2011-12

Quarter      3                 1               2              3                4                 1              2                 3

Singles        35,500       31,600    30,500   31,400     28,500       28,700    27,800     27,000

Multiples    352,000    385,000  412,100  422,200  455,800    474,300  478,900   502,400

Total           387,500     416,600  442,700  453,600  484,300    503,100  506,800  530,400

Firstly, you will note that of the 530,400 outstanding claims, 502,400 are multiples.

Secondly, the figure for single cases has actually gone down over the last two years – something you will never read in the Telegraph.

It is true that multiple cases are rising steadily.  But does that mean the tribunal system is on its knees?  There have always been multiple cases: equal pay claims, unlawful deduction claims arising from contract disputes, and cases involving the Working Time Regulations.  These large multiples clearly have the potential to distort the figures.  That is why, every year when the tribunal statistics are published, the foreword explains that the figures for Working Time cases include 10,600 airline cases that are resubmitted every three months, for technical reasons to do with time limits.  That means that for those original 10,600 airline cases, another 42,400 cases are added every year.  But they are all the same case!  And they’ve been going since 2007.  No wonder the “backlog” is growing.  It passed the 200,000 mark in September.  But it’s still only 10,600 claimants, and they all make the same case.  Yes, over 200,000 of that 500,000 backlog of multiple claims represents essentially one case.

And that’s just the airline cases; as they are test cases, other cases on similar points of law are also stayed until all appeal stages of the airline cases have been concluded.

Of course it’s unfortunate that those cases have to be re-submitted every three months for technical reasons, if that gives rise to unnecessary administration work, but that doesn’t mean the tribunal system is on its knees: it means there is a technical rule on time limits which perhaps should be amended to provide for situations like this.  But all of those “cases” will ultimately be decided by one tribunal, not 200,000 tribunals.  So to suggest, based on these figures, that the tribunal system is “completely overstretched” is wholly unwarranted.

For a more realistic assessment of what happens to a typical case involving one individual, just look at the year to date clearance times for April to December 2011 (source: the same MoJ spreadsheet):

Employment Tribunals year to date clearance timetable

Table 2: Cumulative percentage of Employment Tribunal clearances that took place in April to December 2011

Quarter 3 2011-12    
  25% point 20% point 75% point
Single Less than 12 weeks Less than 20 weeks Less than 34 weeks
Multiple Less than 34 weeks Less than 2 years Less than 3 years

So, 75% of single claims were resolved within 34 weeks, not 3 years. It’s only for multiple claims that one in four cases took more than 3 years to resolve.  And only a very small number of employers are defending multiple cases.

So why didn’t Louise Peacock mention that in her report?  The press release on which she relied for her article [http://www.emwllp.com/news/employment-tribunal-system-backlog-at-record-high/] whilst hardly offering a great analysis, did at least clearly indicate that the 3 year figure relates to multiples.  But Ms Peacock leaves the word multiple out and so gives the false impression that 1 in 4 of all tribunal claims take more than 3 years to resolve.

In any case, to suggest that if some multiple cases take years to resolve, there must be something wrong, is to completely misunderstand the way our legal system works.  Those airline cases, for example, involve points of law which need to be resolved by way of appeal. They have made their way from the tribunal up through the Employment Appeal Tribunal, the Court of Appeal, to the Supreme Court, then to the European Court of Justice and are now heading back to the Supreme Court. Meanwhile other cases are stayed precisely so that the parties and the tribunal don’t re-litigate the same points.  That’s how it works.  When the airline cases are over, the backlog figure will go down.  Guaranteed.  And when that happens, the Telegraph won’t cover it.  Also guaranteed.

Why does it matter?  Because the Telegraph is creating a myth about employment tribunals, that there is an ever increasing number of claims and something needs to be done about it, which judging by the second reading debate on the Enterprise and Regulatory Reform Bill last week, a number of Conservative MPs have swallowed wholesale.  And they will use this myth to justify taking employment rights away from as many workers as they can.   As reported in the Peacock article, Brendan Barber pointed out this myth in a Telegraph debate last Thursday:

“All of this debate is based on a degree of mythology,” he said. “The idea that employers are being taken for thousands and thousands of pounds, that there are armies of people lining up to take vexatious, frivolous tribunal claims, that is simply not a reality.”

And how did Adrian Beecroft, poster boy for employment law reform, respond to that?  As quoted in the Telegraph: “the fact that it’s a myth doesn’t matter.”

I say it does matter, and it’s time we started calling the Telegraph on its inaccurate and misleading reporting.

Posted in Uncategorized | 4 Comments