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

Was a doctor really disciplined for sharing his Christian faith?

Posted on June 19, 2012 by Darren Newman

Sometimes you come across an article in a newspaper that is so wrong – so utterly and completely wrong and unfair, but in a self-satisfied and smug sort of way – that you just want to scream. My neighbours can be grateful that I now have this blog to stop me disturbing their evening with muffled obscenities and the sound of smashing crockery.

The offending article is here. The central claim that Cristina Odone makes is that a GP has been disciplined by the GMC because he ‘suggested to a suicidal patient in August 2010 that religion might do more to help him than medication’. According to Dr Scott:

“The man was depressed, and had left his own faith. So I told him, ‘You may find that Christianity offers you something that your own faith did not.’ His mother complained that I was forcing my religion down his throat.”

Dr Scott is quoted extensively in the article – and never with a hint of anything less than approval. When Ms Odone says that:

“The former missionary doctor and father-of-three believes that Christians must keep their faith “in the closet” or risk punishment”

It is clear that she is sympathetic to that view. Referring to his recent treatment for cancer, Ms Odone says:

What upsets him most is the realisation that it has become dangerous today to express Christian beliefs in the workplace

The idea that Dr Scott is right about this, that it is ‘dangerous’ to express Christian beliefs at work is a standard Telegraph canard. It fits the ‘political correctness gone mad’ narrative so neatly that Telegraph journalists are obviously delighted to take whatever they are told by the Christian Legal Centre and use it unquestioningly. Not even curious about whether there may be two sides to a story. Did it even occur to Ms Odone to wonder whether there was more to the complaint than Dr Scott just ‘suggesting’ that Christianity might have something to offer a patient?

I thought it would be a good idea to look at the actual letter sent to Dr Scott by the GMC Investigation Committee which gives a detail account of its findings. This took nearly 5 minutes of internet research. No doubt Ms Odone is very busy.  However, if she had checked the findings of the Committee she would have realised that her article seriously misrepresents what actually happened.

What has the GMC actually said? 

Ms Odone writes:

“The same council that allows doctors to promote the healing effects of homoeopathy, chiropractic and reiki, also known as palm healing — which are all unsupported by Western, evidence-based medicine but are backed by belief systems — has banned the mere mention of faith and prayer in a consultation”

No it hasn’t. The Investigation Committee specifically says:

‘The Committee does not consider that matters of faith are irrelevant to clinical care, and accepts that there are many circumstances in which spiritual assistance is valuable’

However, the Committee found that Dr Scott was in breach of two paragraphs of the GMC’s supplementary guidance: ‘Personal Beliefs and Medical Practice’. Paragraph 19 says this:

‘You must not impose your beliefs on patients or cause distress by the inappropriate or insensitive expression of religious, poliical or other beliefs or views’

Paragraph 33 says:

‘You must not express to your patients your personal beliefs including political, religious or moral beliefs in ways that exploit their vulnerability or that are likely to cause them distress’

Surely we can all agree that those are reasonable requirements? And can we also agree that the GMC has categorically not ‘banned the mere mention of faith and prayer’.

Was the GMC hearing a Stalinist ‘secret court’?

Dr Scott is not happy with the procedure that was followed at the oral hearing that resulted in his warning:

“From his home in Margate, Kent, Dr Scott said: “It was as if I had stepped into a secret court, with the witness, Patient A, never appearing. He was allowed to give evidence over the telephone, and remained a faceless accuser.”

Patient A was the ‘suicidal’ patient mentioned above whose mother subsequently complained about Dr Scott’s conduct. He was not a faceless accuser. We don’t know who he is because his identity is being protected for obvious reasons of patient confidentiality. But Dr Scott knows who he is – and has met him. He is certainly not faceless. His oral evidence was given by telephone but he had also provided a detailed written statement made a couple of months after the consultation at the heart of the complaint.

Taking evidence over the telephone is obviously less than ideal, but the Investigation Committee did take this into account. Indeed, Patient A was supervised by a GMC legal representative as he gave his evidence and was cross-examined by Dr Scott’s barrister. Noting that there was a direct conflict of evidence between Dr Scott and Patient A, the Committee says:

“Having made due allowance for the fact that Patient A gave his evidence by telephone and not in person, the Committee considers that it was able to obtain a sufficient impression of his truthfulness from the manner in which he gave his evidence and his response to questions. The Committee consider that Patient A gave credible evidence, direct answers and made all due allowances in your favour”

Ms Odone quotes Paul Diamond (Dr Scott’s barrister) as describing the procedure as ‘Stalinist’. Well it wasn’t was it? That’s just silly. As for the next point made in the article:.

This proved, he says, “the GMC’s bias against me — and any doctor who wears his Christian faith on his sleeve”.

No. You may disagree with the decision to allow Patient A to give evidence by telephone and with the decision to prefer (in large part) the evidence of Patient A to that of Dr Scott – but that is not evidence of any bias. As for the suggestion that it shows bias against Christian doctors in general – well Ms Odone does not do Dr Scott or herself any favours by quoting this irrational and hysterical view with seeming approval.

What did Dr Scott actually say to the patient?

Take a look at this extract from the Telegraph’s report:

Dr Scott believes that efforts to eradicate Christianity’s presence in public life are growing. Before the tribunal hearing, he was vilified in the media as a Bible-thumping zealot; that alone, he says, will intimidate other doctors who dare to infuse their medical work with Christian charity.

By upholding this ruling, he believes the GMC has set a precedent, making it a disciplinary offence to bring faith to work.

I’m all in favour of medical work being infused with Christian charity. And many doctors up and down the country bring their faith to work every day and find that it inspires them to do their best for their patients. It would be very wrong if that were to be a disciplinary offence.

So lets look at what the GMC actually found had happened in this case and see whether these claims are sustainable.  Dr Scott disputes those findings (for the most part) but that is beside the point. To judge whether the warning is excessive or unreasonable we have to look at the facts as found, not as Dr Scott asserts them to be.

The consultation with Patient A -who was not one of Dr Scott’s patients and had not previously met him – was made at the request of patient A’s mother who had ‘urgent concerns’ about him.  The Committee’s report does not state what patient A’s religious background was – but does make it clear that it was not Christian.

The Committee found that Dr Scott told Patient A that he was not going to offer any medical help, but that he did have something to offer him which would cure him. He said words to the effect that if the patient did not turn towards Jesus and ‘hand Jesus his suffering’, then Patient A would suffer for the rest of his life. He also said words to the effect that Patient A’s own religion could not offer him any protection and that no other religion in the world could offer Patient A what Jesus could offer him and that ‘the devil haunts people who do not turn to Jesus and hand him their suffering’. Finally the Committee found that Dr Scott said words to the effect that he was not offering Patient A anything else ‘because there is no other answer and that he will keep suffering until he is ready to hand his suffering to Jesus’.

Can anybody look at those findings and seriously claim that this is an example of a doctor who infuses his medical work with ‘Christian charity’? Patient A was a vulnerable man with what would appear to be mental health issues. Are the comments which the Committee found Dr Scott to have made really just an example of someone ‘bringing his faith to work’?

Ms Odone asks ‘What is it about the Christian mindset that causes such hostility in today’s liberal society?’ Well there are lots of Christian mindsets. Some of them can stake a reasonable claim to having been responsible for today’s liberal society. But I wonder if Ms Odone would defend the mindset of a doctor who behaved as the GMC found Dr Scott to have behaved?

Lazy, irresponsible – and in poor taste

We should, of course, keep the persecution of Dr Scott in proportion. He has been given a warning. He has not been struck off and the Committee found that his fitness to practice was not impaired. He just needs to make sure that his desire to share his religious beliefs does not get in the way of the best interests of his patients.

The Telegraph on the other hand – and Cristina Odone in particular – should try to research the facts of a story before gleefully seizing on another example of Christians being ‘persecuted’ in the workplace. This sort of article is lazy and irresponsible. There is real persecution in the world and there are places where expressing your religious belief is genuinely dangerous. Using that sort of language when talking about a doctor being reprimanded for his insensitivity towards a patient is in pretty poor taste.

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

On the long, drawn out death of the ‘no-fault dismissal’

Posted on June 19, 2012 by Darren Newman

It seems that the Government is about to announce the final death of the ‘no-fault dismissal’ as it announces the results of its call for evidence on the issue.

This morning I was struck by two very different obituaries for the proposal. The Guardian carries the strapline:  ‘Adrian Beecroft’s ‘hire and fire’ law shelved after majority of small businesses fail to get behind it‘. The Telegraph, on the other hand, goes with ‘The Government has killed off proposals allowing firms to fire at will without fear of an employment tribunal despite new evidence showing more businesses are in favour of the move than those against it‘ (my emphasis)

Now I know that the Guardian and The Telegraph approach the world differently – but you might think that the evidence submitted to BIS would either show that there was business support for the proposal or that there wasn’t. Those two reports can’t both be right can they?

Searching for an objective view of what the evidence actually said I looked at the Mail Online (I know, the things I do in the cause of blogging). They link the story to the apparent reversal of plans for regional public sector pay and see the dropping of ‘David Cameron’s plans to give employers an automatic right to sack bad workers’ as yet another Coalition U-turn.

The truth, however, is that the Government never proposed introducing so-called ‘no fault dismissals’. The proposal came from venture capitalist and Tory donor Adrian Beecroft. It was picked up largely by the Daily Telegraph and some elements within the Conservative party, but it was never Government policy. It achieved the prominence that it did partly because its proposals were leaked to the press. This allowed the story to gain traction before the full report was actually published and everyone could see what a flimsy and poorly reasoned piece of work it was. The call for evidence, limiting the proposal to micro-businesses, always struck me as a holding tactic allowing the Government to sort out its response to  a very effective media campaign which completely misrepresented the current state of the law.

We will see today, it seems, just what the evidence that BIS called for actually showed. However, the Telegraph is surely being the most disingenuous with its coverage. Look at this paragraph:

This is despite almost four in 10 businesses (38pc) responding to the Government’s call for evidence being in favour of no-fault dismissal, compared to 32pc against and 30pc undecided, an early analysis of 135 responses shows.

Now I’m not a statistician, but it seems from this report that of the 135 responses referred to by the Telegraph, just 51 (ish) employers were in favour of the proposal.. Clinging to the idea that more employers are in favour of the proposal than against it is pretty weak stuff – especially when we are dealing with such small numbers.

But to get further into the statistics is to play the Telegraph’s game. Who says that employment law should be written by the employers? At most they are just one half of the employment equation. Employment law is basically an exercise in limiting the power of employers to treat employees as they like. The law does this in order to protect employees who are otherwise vulnerable to unfair treatment – because in the relationship between employer and employee, the employee is in the weaker position. Employers do not have a veto over what employment law should be. That would defeat the point.

Nevertheless, most employers accept the basic framework of employment law – even if they don’t necessarily like it. The Telegraph points out that Alexander Ehmann, head of regulatory affairs at the Institute of Directors, is very disappointed that the proposal has not been taken up. Well I’m sure he is, but the fact that the ‘no-fault dismissal’ idea failed to attract majority support from the small number of actual employers who responded illustrates just what an extremist proposal it was. It seems that today it will finally die a death. Can we move on please?

Posted in Beecroft | Tagged , , , , , , | 3 Comments

Settlement Agreements and ‘no-fuss sackings’

Posted on June 10, 2012 by Darren Newman

The Guardian carried an interesting story on Sunday night headed ‘No-fuss sacking payouts included in employment law overhaul’. This article makes the remarkable claim that the new Enterprise and Regulatory Reform Bill will allow employers to ‘sack their workers by offering them immediate payouts if they agree to leave without any fuss’ .

What makes this claim remarkable is that on the face of it, this is EXACTLY what the law currently allows. If an employee agrees to leave without any fuss in return for a payout from the employer then the parties can reach a ‘compromise agreement’ setting out the terms of the settlement and making it clear that the employee waives all rights to a legal claim in relation to his or her employment.

As currently drafted, the only the change that the Bill makes to  the current system is to change the name of  ‘compromise agreements’ to ‘settlement agreements’ – which is the absolute epitome of a cosmetic change. It has no practial or legal impact whatsoever.

The Guardian carries a detailed quote from the Minister, Norman Lamb. The fact that he has given such a quote suggests to me that this story is either being fed directly to the Guardian or is based on a press release not yet published on the BIS website. Either way, this means that we have to take the story seriously – but look at what Norman Lamb actually says:

Employers have to feel confident in dealing with situations such as where an employee isn’t pulling their weight or where someone is unreliable or even guilty of misconduct. In these instances it is sometimes in the best interests of both employee and employer to end the relationship speedily by reaching a settlement

An employee leaving by agreement can do so with their dignity intact. The employer secures peace of mind knowing that they will not face expensive tribunal proceedings. We know that many large companies use settlement agreements in this type of situation but we want to ensure that all employers – large and small – can make use of them without incurring large legal fees.”

Well yes, all well and good – but isn’t that just what compromise agreements currently do? Is there actually any change being proposed here, or is this all smoke and mirrors? There is some sense in the last point that compromise – sorry – settlement agreements can be made easier to draft with the result that legal fees are lower. Anyone who has gone through an actual compromise agreement process will have been frustrated by the absurd verbiage  that current legal wisdom seems to insist on inserting into the draft. A measure which comes up with a standard form of words would be very welcome. I doubt that solicitors will lower their fees by much as a result – but how expensive are they anyway?

There is, however, no change to the general structure of compromise agreements in the current draft of the Bill.  Nor is there anything that remotely relates to the next claim made by the Guardian:

…the new proposals will include a stipulation that an offer of a settlement agreement cannot be used in any future employment tribunal against the company. Employees can, however, refuse the offer and insist that any dismissal is handled through more formal complaint handling procedures.

This sounds similar to the ‘protected conversation’ idea that has been widely mooted in recent months. Assuming that the Guardian is not simply making this up or has been misled, this must mean that the Government is planning to introduce a clause creating some form of protected conversation as the Bill progresses through Parliament.

I hope that any such clause will be introduced at an early enough stage that it can be properly examined and debated. The wording of the clause will be crucial and is by no means straightforward. A badly drafted clause could be very damaging and result in a huge amount of extra litigation and uncertainty.

And I have to wonder – if this is the Government’s intention from the outset, why is there currently no clause to this effect in the Bill? Could it be because it is proving harder than expected to come up with a watertight provision? The nightmare scenario is that a slapdash new clause is introduced at Report stage in the House of Lords and nobody pays it any attention until the EAT cases start rolling in saying how completely unworkable it is.

The final claim made by the Guardian is this

The bill, being overseen by Cable’s Department for Business, Innovation and Skills, will also include a section insisting that employment disputes are considered by a less formal arbitration procedure before they go to an employment tribunal, in another attempt to cut costs.

I’m going to stick my neck out here and say that the Bill will do no such thing.  I assume – I hope – that the Guardian is mixing up the idea of conciliation by Acas prior to an ET claim with a process of arbitration, which is an altogether different thing. The Government’s proposals on pre-claim conciliation are at least set out in the Bill- although a disturbing amount of detail is being left to later Regulations. They key factor to watch here is  whether Acas is resourced appropriately given its new role. I would also hope that the current drafting on extending the time limit for ET claims to take account of the new pre-claim conciliation period is completely re-written. The current version is simply a nightmare. There is absolutely no prospect, however, of the Government introducing compulsory arbitration in employment disputes. Surely not. They just couldn’t -could they?

At the time of writing the jury is out on whether this article represents an attempt by the Government to make the Bill sound more radical than it is in order to appease the Beecroft crowd, or whether we can expect the Bill to be amended so that it actually does what the Guardian says it will. The second reading debate is on Monday and I’ll update this post when the position becomes clearer.

This is going to be fun, isn’t it?

UPDATE 1 Monday, 8.00 am

The story has also been picked up by the Daily Mail who use much of the same material as the Guardian (thanks to @Ljanstis for spotting the article). I won’t parse the article for all the silly little mistakes that no-one else cares about (‘wrongful dismissal’ indeed!) but it is worth looking at the last two paragraphs:

The Government will also issue guidance and template settlement agreement letters which will significantly reduce legal costs and enable more businesses to use them.

Ministers will consult over the summer on the principles of guidance for using settlement agreements, including draft letters and model templates for employers/employees to use.

Hmm. Does this sound like the Government are planning actual amendments to the Bill or just issuing guidance on how to use settlement agreements? Hopefully in the debate today a Minister will actually tell us what is being proposed so that we don’t have to try to guess their plans through the fog of a newspaper article.

UPATE 2 Monday 12.00

We now have the press release from BIS (spotted by @HRBullets) which confirms what the Government is actually proposing. Cutting through the verbiage – and there is quite a lot of it – the plan is to introduce a clause making the fact that an employer has made an offer of a settlement agreement inadmissible in the Employment Tribunal. This is a narrower proposal than the previous ‘protected conversation’ because there will need to be an offer made. What form of words will be needed to take advantage of the exception is not made clear and I have a horrible suspicion that the Government intends to deal with this issue through ‘guidance’. Clear wording in the Bill would be much better.

On the face of it this is actually quite a modest little proposal which will not make much of a difference in practice. However, whenever you define something in legislation there will always be arguments about what circumstances do or do not fall within the definition. The dispute resolution procedures seemed harmless enough way back in 2002 – and look what happened to them.

I can’t escape the feeling that in order to be seen to be ‘doing something’ about  making it easier to sack people the Government is solving a problem that doesn’t actually exist in practice.  In doing so it may create problems that we have yet to foresee. The new Clause is expected in the Commons Committee stage so at least we should have plenty of time to examine it before it becomes law

Posted in Enterprise and Regulatory Reform Bill | Tagged , , , , , | 7 Comments

Time to get radical with whistleblowing

Posted on June 6, 2012 by Darren Newman

Nothing to complain about today, which is obviously a bit irritating. However I did notice two news stories that raise some interesting (I think) issues around whistleblowing.

In this story (from last week) the Guardian reports that Michael Woodford, the former boss of Olympus, has settled his unfair dismissal claim in which he alleged that his dismissal was prompted by him pointing out financial irregularities to the board. Obviously the settlement is confidential but the Guardian seems to think that the sum involved may be £10 million.

You’d manage to scrape by on that wouldn’t you?

Over at the Telegraph, a partner in a law firm who was based in Tanzania has won the right to bring a claim in the Employment Tribunal alleging that she was subjected to a detriment for making allegations involving bribery. She is also claiming that her pregnancy had something to do with the decision to let her go. In this case she can’t claim unfair dismissal because an equity partner in a law firm is not an employee. However she can claim sex discrimination and – if she is a ‘worker’ –  a whistleblowing ‘detriment’. The EAT case reported in the Telegraph is actually mainly concerned with whether she has worker status and the conclusion is that she does. There’s nothing special about that and I don’t blame the Telegraph for  missing out any discussion of that rather dull issue. There is also an issue of territorial jurisdiction, which is a subject that bores me senseless, but the EAT concludes that her links with the UK were sufficiently strong to allow her claim to proceed.

The thing that immediately strikes me about these cases is how utterly atypical they are of the normal Employment Tribunal fare.  Each has two unusual features.

The first is that the sums of money involved are huge in comparison to average ET claims. We don’t know what the lawyer is claiming in her schedule of loss, but the Telegraph puts her remuneration at £200K so you can bet that hefty sums are involved. The EAT transcript shows that her lawyers are Mishcon de Reya, which indicates that she expects sufficient damages to pay some pretty hefty legal fees at the end of the process. As for Mr Woodford, whether the Guardian’s guess of £10 million is right or wrong, we can be sure that we are talking about a pretty big sum.

The second unusual feature is that they are about whistleblowing. There is of course nothing unusual in whistleblowing claims  – but these cases actually seem to involve an employee or worker genuinely disclosing information which tends to show actual wrongdoing. Most whistleblowing claims that employers deal with on a day to day basis are much more loosely based than this and the nature of the wrongdoing alleged is usually more obscure.

The uncomfortable fact is that whistleblowing is the most seriously abused ET claim on the statute book. Protection for genuine whistleblowers is vital but the vast majority of whistleblowing claims are simply a creative attempt to get around the qualifying period for unfair dismissal, avoid the cap on compensation and just generally front-load costs on the employer. Whistleblowing is the claim of choice for the vexatious litigant.

Obviously the only evidence I have for such a claim is anecdotal – and a general impression from reading endless transcripts of decisions in whistleblowing claims that were at best creative and at worst completely misconceived.  But I’m right. Honestly, I am.

I think that the problem is so bad that the Government would be entitled to take radical steps. The current proposal in the Enterprise and Regulatory Reform Bill  is to introduce a requirement that the claimant reasonably believes that his or her disclosure is in the public interest. That will make no difference to the current situation because the problem is not that claims with no public interest element are succeeding – the problem is that hopeless and petty cases are being brought, taking up large amounts of time and generally bringing the whole subject into disrepute.

Here’s my idea. A claimant who wants to add whistleblowing to his or her claim should be required to get permission to do so from the ET (or maybe even the EAT). To do so they would have to provide clear evidence of a disclosure of information which tended to show wrongdoing  which was sufficiently serious to affect the public interest. An employer would only be required to respond to such a claim when this basic test was passed. An employee would be free to raise whistleblowing issues in the course of a normal unfair dismissal claim but claims of detriment, dismissal inside the qualifying period or claims in excess of the normal cap on compensation would only be allowed to proceed with permission.

I don’t think that this will be a serious barrier to genuine whistleblowing claims, but it would go a long way towards protecting employers from vexatious litigants. There’s a lot of loose talk about vexatious litigants in the press but we shouldn’t let that deceive us into thinking that there is no problem here. There really is.

Oh and while I’m filled with reforming zeal – do the two cases reported at the top of this post really belong in the Employment Tribunal system? Wealthy claimants claiming seven figure sums are hardly in need of a cheap and informal way of resolving their dispute. I’m not in favour of introducing across the board fees for claimants, but surely it is reasonable to expect parties in this sort of case to pick up the bill rather than have the state provide a free adjudication service for them?

So what do you think? Sensible policies for a happier Britain? All comments welcome.

Posted in Whistleblowing | Tagged , , , , , | 2 Comments

The art of misdirection – what’s really going on with Beecroft?

Posted on May 28, 2012 by Darren Newman

The brief I’ve given myself in this blog is to look at employment law issues in the news and try to explain ‘what is really going on’. When it’s just a matter of the Telegraph or Daily Mail getting the detail of the law wrong that’s quite easy. With the Beecroft report, however, figuring out what is really going on is more tricky.

Having been away for the past few weeks I’m obviously coming to the story pretty late in the day. Lots of good stuff has been written about Beecroft and if you haven’t followed the story then you just need to check out Michael Carty’s blog for XpertHR.

For what its worth, I think the Beecroft report is an astonishingly slipshod and ‘slight’ piece of work. So much so, that I bet BIS are pretty embarrassed by it. In the introduction, Beecroft thanks BIS officials for all their help with the report. I suspect that what happened was that they tried to explain some of the issues to him, but he proved to be a poor student.

Time and again Beecroft explains an employment law issue in a way which shows that he has very little knowledge of what the law actually says or how it works. Take this suggestion from the section on unfair dismissal:

The burden of proof on the employer could be reduced, making it harder for the employee to claim to a tribunal that the process was flawed. Reducing the burden of proof would also address the problem of employees claiming that dismissal was for discriminatory reasons rather than performance reasons since if it is easier to prove that dismissal was for underperformance it is harder to say that it was for discriminatory reasons.

If you were marking the Beecroft report as an essay I think you’d write ‘see me’ next to that paragraph. Someone capable of writing about unfair dismissal in that way clearly has a very confused understanding of what the law says (what ‘burden of proof’ is he referring to?) and you would want to discuss with them whether they might not be better off studying something else.

Enjoyable though it is, however, it is simply too easy to run through the Beecroft report and point out all the legal howlers. Something more important is going on here. How did such a ropey piece of work gain such traction? Why was it commissioned and what purpose does it serve?

Its important to remember that the report was surely not meant for publication. If any part of the Government wanted a report critiquing current employment law and suggesting a more ‘free market’ way forward it would have been quite easy to come up with one. There is no shortage of people who actually know what they are talking about who could have done a very competent job.

Whatever Beecroft was intended to be, it wasn’t intended to be a serious analysis. It’s not the content of the report that matters because the content is obviously rubbish and no serious effort has gone into it.

We should see the Beecroft report in terms of its function within the Coalition. On employment law, the Conservatives and the Liberal Democrats have different starting points.   The Conservative position is to be suspicious of any talk of rights and to believe that if business is freed to behave as it likes towards employees then that will benefit the economy, and ultimately the workers employed in it.  The Lib Dem position is to be suspicious of unrestrained capitalism and more comfortable with the idea of the law protecting employees from unfair treatment.

Both coalition partners need to demonstrate that they are winning some ground for their way of thinking – and the Beecroft report facilitates that. The Conservatives can show that the Lib Dems do not have a lock on business policy despite Vince Cable being SoS. They can argue that radical thinking is going on behind the scenes and leak selected highlights to the Daily Telegraph. The Lib Dems, on the other hand, can claim to have blocked the notorious ‘no-fault dismissal’ idea showing that they are a restraining hand on the tiller. Then again, the Conservatives can quietly point out that most of Beecroft’s recommendations (many of which had been in the pipeline for some time anyway) are being followed up. Both sides gain something from the report.

Meanwhile, while all our attention is on the ‘no fault dismissal’ proposal, the Government quietly publishes a Bill paving the way for a dramatic reduction in unfair dismissal compensation. That attracts very little attention because Clause 12 of the Bill is expressed in pretty obscure terms, and because there is no actual proposal yet. In theory, a Secretary of State could use the new power to increase the current limit on a compensatory award. However it is much more likely, in the current climate, that the maximum compensation will be reduced – possibly by a significant amount. Anya Palmer has written in the Guardian about how important this provision is, but the rest of the press is happy to ignore the proposal. The fact is that the change is not ‘eye-catching’ enough to make good copy.

When a magician points to his right hand to show you it’s empty, you can be sure that he has something important hidden in his left.  Whether it was originally intended this way or not, the Beecroft report is a piece of misdirection. Let’s not fall for it.

Posted in Uncategorized | 7 Comments