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

The real red-tape challenge – being specific

Posted on May 27, 2012 by Darren Newman

So I pop off on holiday (lovely, thanks) for a few weeks and all sorts of employment law starts happening. Surely people could have waited until I got back?

I have a lot of catching up to do on the Beecroft report and the new Bill (whatever its called) and all the stuff that has been written about them. Luckily Michael Carty has diligently linked to everything you need to know about Beercroft over on XpertHR so it shouldn’t take me long to get up to speed.

But I can’t resist a preliminary rant. One aspect of the reporting of employment law that drives me up the wall is when the press (or Adrian Beecroft for that matter) fail to back up their assertions with actual examples of where the law is going wrong. A general reference to ‘red tape’ is not good enough. One person’s red tape is another person’s basic entitlement – see Mrs Markleham’s blog for some very good points about ‘red tape’ vocabulary here

Even the real life examples quoted by the press can be startlingly low on specifics. Take this report from the Telegraph (where would I be without Louisa Peacock?) headlined ‘How red tape is tying British business in knots’ . This quotes the MD of Z-Card who has been battling a tribunal case for two years now and feels that the claimant is playing the system. This is not the first time that the Telegraph has used this case as an example. In January 2011 they reported that the same MD was now facing her first ET claim and was refusing to settle it.

Now I’m not going to express any opinion about the case that Z-Card is engaged in. I can’t because I’ve been told next to nothing about it. I don’t know what the claimaint is alleging even in the broadest terms. I don’t know whether its a hopeless case or a really strong one. I don’t know whether the case would settle for a small sum or whether the stakes are high. I don’t know what has caused the delay (two years for a case is highly unusual) and whether the delay is the fault of the claimant, the employer or the system itself. There are two sides to every story – but in this case we aren’t even given one side.

Is it too much to ask for at least a basic outline of the nature of the case and the reason for the delay when the case is being put forwards as the only example of red tape tying a business up in knots? I don’t need technical detail but even anecdotal evidence should contain some factual information which backs up the point being made. here we are given none.

One guess I can make is that if the case has taken two years so far then it is not just an unfair dismissal claim. There may also be some discrimination alleged or perhaps whistleblowing. There may be no substance to these allegations but the point is that the case is unlikely to have been avoided if there was a no-fault dismissal law in place. That is an important point since the main thrust of the article seems to be that employers like Z-Card would benefit from such a law.

This is an important time for employment law and serious changes are in the offing. I don’t object to the press or anyone else advocating a particular position, but if they argue that a law is wrong, unfair or unduly burdensome then  they should at least be able to explain exactly what aspect of the law they are objecting to.

Posted in Uncategorized | 3 Comments

I’ll Be Back

Posted on May 2, 2012 by Darren Newman

One of the luxuries of self employment is taking long holidays without having to clear it with a manger first. I’m off on my travels now until the end of May and so won’t be likely to update this blog no matter what provocation there may be from our friends in the mainstream media.

If you do see a story that needs looking into then please let me know, either on Twitter or in the comments section. I’l do a round-up when I get back.

 

 

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Forced Retirement: have the press over-egged Seldon?

Posted on April 26, 2012 by Darren Newman

When I read a paper, I have to confess that I hardly ever read a full article unless I’m particularly interested in it. I’m more likely to scan the headlines and maybe the first couple of paragraphs before I move on.

So let’s look at the Seldon case from the point of view of someone with no particular interest in the subject. What would the headlines tell them?

Daily Mail: ‘You can be forced to retire aged 65: Landmark ruling says law firm was right to tell solicitor he must quit his job because of his age’

BBC Online: ‘Supreme Court ruling says employers can force retirement’

BBC Online: ‘Employers can force retirement, court ruling suggests’

Financial Times: ‘Appeal fails on forced retirement’

Daily Telegraph: ‘Firms win right to retire workers at 65’

The Guardian: ‘Age discrimination ruling allows employers to set retirement dates’

Of those, the only headline that correctly describes the position is from the Financial Times. It is undoubtedly true that an appeal has failed on forced retirement – so well done them. The others all make the story more interesting – and more straightforward – than it is.  They give the impression that there is now some general right for employers to force employees to retire when of course it is much more complicated than that (mind you, fair play to the BBC for adding ‘suggests’ to the end of its headline – good try)

I don’t want to go into an analysis of the Seldon decision. I suspect I’ll be writing quite a lot about it in various places in the time to come and talking about it in employment law updates for the rest of the year. I’m going to be throughly fed up with Mr Seldon by the autumn and no doubt my clients will be too. If you’re keen, you can read the whole judgement here and the press summary here. There are also some excellent legal blogs on the decision from Laurie Anstis on Work/Life/Law and Lewis Silkin’s Age Discrimination  info as well as a whole host of commentary and debate if you follow the #ukemplaw hashtag on Twitter. All good stuff.

The key point to get right about Seldon is that although forced retirement can in theory be justified, an employer will still have to show that retirement is justified in a particular case – and do that by reference to recognised legitimate objectives such as ‘intergenerational fairness’. Even if there is a legitimate aim being pursued the employer needs to show that retirement at the age in question is ‘proportionate’ and that issue has yet to be decided in Mr Seldon’s case – he hasn’t lost yet.

In reality, any employer that adopts a policy of forced retirement age is almost certain to get sued over it at some point and will have absolutely no guarantee of winning. it is a high risk strategy and only employers who feel they have a compelling case for retirement should even consider such an approach. For most employers and employees, forced retirement at a set age is a thing of the past.

Now to be fair, most of the press stories quoted above do make it clear that individual employers will still have a steep hill to climb in justifying forced retirement. You could pick fault here and there with the detail but there are lots of quotes from lawyers trying to explain the case in simple terms and emphasising that each case has to be judged on its own merits. Once you get past the headlines, I think the press have generally done a good job, all things considered.

However one assertion in one of the articles did strike me as odd. The Telegraph article quoted above has this paragraph:

Legal experts said the decision gave the go-ahead to firms to get rid of employees at 65, just months after the practice supposedly became unlawful.

My question for the Telegraph is this: which legal experts said that? Lots of lawyers have generously supplied the press with attributable quotes describing the effect of the judgement but I can’t find any that have said  ‘this decision gives the go-ahead to firms to get rid of employees at 65’.  That’s not surprising, of course, because the decision does no such  thing.

Is it possible that these anonymous experts are not quoted directly because they don’t exist, but had to be invented to support a more ‘newsworthy’ proposition?

I’d propose as a general principle that when a position is ascribed to unnamed ‘legal experts’ what we are actually reading is a statement that the journalist was determined to use anyway, but couldn’t find a reputable lawyer to put his or her name to.

We could call this principle ‘Peacock’s law’

On the subject of my favourite journalist, we should not forget that the Supreme Court also gave judgement in Homer v Chief Constable West Yorkshire Police yesterday. This is a conceptually difficult case about the nature of indirect discrimination and I’m still trying to figure out whether or not I agree with what the Supreme Court has said (I bet Baroness Hale is on tenterhooks).

Louisa Peacock is one of the few journalists to have picked up on the case. Her article says this:

Job adverts seeking graduates could be outlawed 

The Homer case could revolutionise job adverts by outlawing the terms “graduate” or “degree-qualified”, in much the same way that “enthusiastic” and “energetic” are words that are rarely used by employers for fear of being accused of looking for only younger staff.

I don’t want to get bogged down in this.  Lets just say that none of that is remotely true – and leave it at that.

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Are companies ‘shunning’ temps because of the Agency Workers Regulations?

Posted on April 11, 2012 by Darren Newman

I’m starting to think that I should simply dedicate this blog to Louisa Peacock of the Telegraph. Her latest offering is an article claiming that the Agency Workers Regulations have caused companies to ‘shun temps’ – with the clear implication that giving workers rights is ultimately bad for them.

Now the Regulations are a complicated piece of legislation, and I’m  not going to claim that their introduction does not cause some headaches for employers and agencies.  But in this article Ms Peacock manages to link what appears to be a decline in the hiring of agency workers with the burden imposed by the Regulations despite having – it would seem – absolutely no evidence for this whatsoever.

First of all, though, a gripe about the headline ‘Companies shun temps following EU ruling’. I hate to sound picky, but there hasn’t been a ruling! Rulings are made by courts. What has happened here is a Directive has been introduced which has then been implemented in the UK. I know it doesn’t really matter, but its often the little things that annoy me the most.

Reading the article, it’s not entirely clear what has actually happened to the hiring of agency workers. I struggle to understand this paragraph

On a scale where anything above 50 represents an increase, temporary hires fell to 48.5 last month, down from 49 in February and down by 7pc since the new rules came into effect in October.

I would be more concerned about temporary hires falling to 48.5 if I knew what that actually meant. 48.5 what? million? per cent? hours per week? From the article it doesn’t look like Ms Peacock knows either. I think its probably some sort of index, but without some proper explanation its impossible to tell what this figure really means.

The employment law howler comes in this paragraph:

Under the changes, which stem from European law, temps are entitled to the same pay and benefits as permanent workers after just 12 weeks in a job. Previously, they had to wait one year to clock up employment rights.

No complaint about the description of what happens after 12 weeks, but the last sentence is of course quite wrong. Agency workers are not (generally) employees and are unable to claim unfair dismissal (which, until last Friday, had a one year qualifying period). The vast majority of agency workers were no better off if they stayed in the same role for one year or ten. The would certainly not ‘clock up employment rights’ after a year.

Agency workers and employment status

It is worth emphasising that the Regulations made no change to the employment status of agency workers. Either they are employees or they are not – and most are not. They do not become employees after 12 weeks and if they are not employees then they do not qualify for unfair dismissal rights.

I won’t comment on the cost of the Regulations because I’m not an economist. The figures used in the article are presumably extracted from a Government impact assessment. I will say, however, that calculating the cost to the ‘typical’ small business involves working out so many averages and making so many assumptions that the figure is surely meaningless. The fact is, we don’t know how many agency workers there are in the UK nor how much they are paid, nor how long their assignments would ordinarily last if it were not for the Regulations. Any cost assessment is just a made up number.

It is interesting that the article obliquely mentions the Swedish Derogation – the ‘legal loophole’ under which large hirers have urged individuals to ‘waive their rights’. It is of course more complicated than the article makes out. Workers covered by the Swedish Derogation do indeed waive their rights to be paid the same as they would have been paid if directly hired, but they at least get the benefit of being employed under permanent contracts of employment which will give them unfair dismissal and redundancy rights. There is a serious piece of work to be done on the impact of the Swedish derogation – particularly in the sort of large employers mentioned in this article. I suspect that many agencies will find that the loophole is smaller than they thought – but that is an issue for another day.

The art of selective quoting

The Telegraph article ends with a quote from Tom Hadley of the REC who says that the decline in the hiring of temps:

may in part be linked to employer uncertainty over the agency worker regulations

That is a commendably cautious statement – which is no doubt why it was relegated to the very bottom of the article. It is also a carefully selected quote. Here is the full paragraph from the press release:

“This month’s data shows a slight decline in appointments of temporary workers. This may in part be linked to employer uncertainty over the Agency Worker Regulations, although it could mainly be due to the fact that increasing business confidence has resulted in more employers being prepared to take on permanent hires rather than temporary or contract staff. The benefits of flexible staffing arrangements are well established and other REC data provides some positive indications in terms of the outlook for temporary work in the UK.”

Now why did the Telegraph choose to quote the potential link with the AWR and completely ignore what Mr Hadley goes on to say about the possibility that the change is ‘mainly due’ to increasing business confidence?

I know it’s naive to expect balance from the Daily Telegraph, but really its willingness to paint a picture that fits in with the ’employment law is bad for workers’ theme regardless of the actual facts of he case is remarkable.

The main hook of the article is that the ‘survey showed’ that the cost of the new rules was part of the reason for the fall in temporary hires. But did the survey actually ‘show’ that? Sort of. What the survey actually says is this:

March data indicated a reduction in agencies’ short-term staff billings for the fourth consecutive month. Although modest, the rate of decline was the fastest since July 2009. Lower temp billings were in many cases blamed on the effect of Agency Worker Regulations. Competitive pressures in the sector were also cited by a number of panellists.all in temporary hires

Note that the article completely ignores the qualification that the decline in temporary hires is short and that ‘competititve pressures’ were also cited. It is also noticeable that the online news release from the REC has a very different tone from the Telegraph article. Chief Executive Kevin Green says:

The temporary market has shown a slight decline since January and is essentially flat at present. However, agency work continues to provide an important outlet for employers and jobseekers with over a million temporary workers placed on assignments in any given week.

The article also ignores the latest comments from the REC about its monitoring of the impact of the AWR . In particular the REC says:

The REC’s JobsOutlook report – which tracks the future hiring intentions – shows that the vast majority of employers plan to maintain or increase their temporary workforce in both the short and longer term.

Again, this doesn’t fit the Telegraph’s narrative, so it is completely ignored.

The fact is that assessing the impact of the AWR is complicated. Research from Adecco carried out in February 2012 also gives a different picture to that being touted by Ms Peacock (thanks to @anyapalmer for the link). In the Telegraph’s  article however, we are not really given much information – and the information we are given is distorted or wrong.

Well done, Louisa Peacock – another winner!

NB this post has been updated since Michael Carty kindly sent me a copy of the actual report and press release accompanying it.

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Age discrimination and the Government’s ‘Youth Contract’

Posted on April 3, 2012 by Darren Newman

Could the Government be sued over its new ‘Youth Contract’ which rewards employers who take on young workers aged 18-24 with payments of up to £2,275? According to the Daily Telegraph, the Government’s own guidance has warned that companies could be sued for taking part in the scheme 

Having set up the story with the idea that the Government scheme might be scuppered by age discrimination law, the article then quotes three lawyers, two of whom agree (with one exception) that while a claim might be brought, any challenge is unlikely to succeed because the discrimination will be justified.

The exception is Camilla Palmer who is reported as thinking that there may be a good chance of such a case succeeding. Now I think it is fair to say that Camilla Palmer tends to approach employment law from the point of view of the claimant – but there is no denying that she knows her stuff. If she thinks that a claim might stand a good chance, then we cannot dismiss the idea out of hand.

So let’s look at how a discrimination claim could work in this case. The particular part of the scheme at issue is the ‘wage incentive’ offered by the Government. This allows employers to claim money when they have taken on a young person as part of the Government’s Work Programme and the employment has lasted at least 26 weeks.

The discrimination involved here is plain enough. The funding is only available for workers aged 18-24. This means that a comparable worker aged 25 or over will be excluded. The Government’s scheme therefore treats those aged 25 or over less favourably because of the protected characteristic of age.  But that does not mean that the measure is unlawful

Here comes the legal bit…

Although the scheme would fall within the public function provisions of the Equality Act 2010 (S.28 I think) and would seem to be within the scope of the EU Equality Directive (Article 3), age discrimination is different in that there is a defence of justification. Section 13(2) of the Equality Act says that less favourable treatment because of age is not discrimination if it is a ‘proportionate means of achieving a legitimate aim’. Article 6 of the Directive also allows a difference of treatment on the grounds of age that is ‘objectively and and reasonably justified by a legitimate aim, including legitimate employment policy… and if the means of achieving that aim are appropriate and necessary’. Article 6(1)(a) then gives some examples including:

the setting of special conditions on access to employment and vocational training employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection.

I would say that the Government scheme is exactly the sort of thing envisaged by the Directive as legitimate. The Government is faced with a particular problem of youth unemployment which has important social policy implications. It is therefore limiting access to subsidised employment under the Work Programme to young workers in order to ‘promote their vocational integration’  which is Directive speak for ‘help them get a job’.

Of course you can never predict legal outcomes with 100 per cent certainty, but if this scheme were held to be unlawful in itself, I think the Government would be entitled to be both surprised and quite cross.

Are Individual Employers at risk?

The other approach however, is simply to  sue the individual employer for age discrimination. On the face of it, this could be a  more fruitful route because potentially the employer’s objective in employing a younger worker is to obtain a subsidy. This could be seen as using cost to justify discrimination, which – as we know – is currently a bit of a hot issue in discrimination law. In the guidance quoted by the Telegraph, the Government says,   ‘If this happened, an employment tribunal would wish to consider the employer’s reasons for participating in the scheme. Each case will turn on its merits’

That quote is taken from this guidance document which gives an extended – and, I think, pretty sound – explanation of how they expect a tribunal would approach the issue of justification. The key point is that the employer should not be seeking a cheap source of temporary labour, but genuinely trying to create new job opportunities for young people. In other words, the cost saving is merely a factor that allows the employer to meet its aim of providing work for young people. In such circumstances it is surely right that the employer is highly likely to fend off any discrimination claim.

In fact, if we look at the terms and conditions of the scheme we see that the first requirement is that ‘the Employer would not be in a position to employ the individual… without the wage incentive payment’. In other words, an employer cannot advertise for a job and then pick a young worker from among the applicants in order to claim the subsidy. The job has to be created with the scheme in mind. Presumably applicants are then selected from those young people participating in the Work Programme. Surely the chances of a Tribunal finding that this amounts to unlawful discrimination are tiny?

In any event, it strikes me that a legal challenge to an individual recruitment decision is highly unlikely. There won’t be a disappointed 25 year old who didn’t get the job and wants to know ‘why not?’ because no 25 year olds would have been told that there was even a job to apply for. That may not rule out the possibility of a claim, but it certainly reduces the scope for one.

Is the Telegraph article fair?

The Telegraph has taken a rather technical argument and made it sound like there is a real possibility that the Government’s attempts to encourage the employment of young people will be thwarted by discrimination law. This, of course, feeds into the narrative of discrimination law as ‘red tape’ that prevents bsuiness from making common sense decisions.

The technique that the Telegraph has used is to focus on the phrase ‘could be sued’. We lawyers are quite a literal lot, so if we are asked ‘If I do X, could I be sued?’ the correct answer is almost always ‘yes’. You could be sued, because you can be sued for almost anything. Two more important questions are ‘How likely am I to be sued?’ and ‘If I am sued, what are the chances of me winning or losing?’. The lawyers quoted in the article have all made that distinction, saying ‘yes there could be a case’ and then arguing that it will not succeed. Even Camilla Palmer stresses that justification will be a matter for the Tribunal. Never assume that ‘could be sued’ means the same thing as ‘likely to be successfully sued’.

The Telegraph article is not wildly inaccurate – but its headline overstates the risk posed to the scheme. That is a  pity because that could discourage small businesses from taking part.

 

 

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