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.

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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.

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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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Was a doctor sacked for emailing a prayer to his colleagues?

Posted on March 30, 2012 by Darren Newman

Was Dr David Drew sacked for trying to motivate his colleagues by emailing them the famous prayer of St Ignatious Loyola?. It seems bizarre that this would be a sacking offence – although I have to say that if my manager ever urged me to ‘toil and not to seek for rest; to labour and not to ask for reward’ I’d have some pretty stern words to say to him about the Working Time Regulations and the National Minimum Wage.

Dr Drew’s Employment Tribunal case has been widely reported this week and you can read about it in the the Mail  the Telegraph, This is Derbyshire, and The Sun. Reports even reached as far afield as Australia.

The reports give the impression that Dr Drew was sacked for emailing the prayer to his colleagues and wishing one a ‘peaceful Christmas’ by text message. Read a bit deeper and you get the impression that the problem was that he would not undertake to keep religious references out of his future communication with colleagues.

All of the reports carry the same quote from Dr Drew’s evidence (I suspect everyone was working from the same press release)

“The allegation that I have forced my religion onto other people, that I am some kind of religious maniac was made worse by the fact that they told me there was no need to understand what this is all about”

That, it seems, is a reference to the hospital’s refusal to give reasons for requiring him to stop using religious references, or give further examples of when he had used them in the past.

Reading these reports, I felt there was something missing – something that didn’t quite add up.  I’m not convinced that the religious elements of this case are really what the case is all about.

We should bear in mind that Dr Drew was presumably quite well paid. The cap on compensation for unfair dismissal would probably mean that a straightforward win on the unfair dismissal point would still leave him well short of recovering his losses. If Dr Drew believes that he was sacked for emailing this prayer, then the obvious claim for him to bring is indirect discrimination (for which there is no cap on compensation). But none of the reports mention discrimination – they just say that he is claiming unfair dismissal. If he believes he was dismissed for his use of religious language then surely discrimination would be front and centre of his claim? It’s not as if the press would overlook that word in a press release – they’d surely latch on to it straight away.

The answer, I suspect lies in the BBC report of the case which has a remarkably different tone and content from the other reports. The BBC reports this as a whistleblowing case and says that Dr Drew is alleging that he was dismissed because of the complaints he had made about clinical practice in the hospital. The other reports mention these allegations, but do so in passing. All the focus is on the prayer and the text message.

The BBC report makes more sense to me. Whistleblowing dismissals also have no cap on compensation, so Dr Drew will potentially recover his full losses if he succeeds in showing that the principal reason for his dismissal was that he made a protected disclosure.

Of course, if that is what he is arguing, it doesn’t make much sense for him to focus on the prayer issue. If he was dismissed on those grounds, then that may be indirect discrimination, but it would not be a whistleblowing case.

I suspect that Dr Drew is claiming that he was dismissed for whistleblowing and the employer is defending the claim on the basis that he was dismissed because of a breakdown in trust and confidence. This is what the BBC report says:

The hospital said it accepted Dr Drew was an excellent doctor, but it dismissed him on 22 December 2010 because it said there had been a complete breakdown of trust and confidence.

It said he had failed to accept the findings and recommendations of various inquiries, including a recommendation by an independent review panel that he should refrain from using religious language in all written and professional communications.

The trust said it accepted that his religious references, used as a committed Christian, had not caused offence.

(my emphasis)

The important word in that quote is ‘including’. It means that there were other recommendations that Dr Drew is alleged to have refused to accept. We are not told in any of the reports what these other recommendations are, or how important they were seen as being. For all we know the ‘prayer’ issue might have been the least important of the issues as far as the employer is concerned – although it is obviously something that Dr Drew felt strongly about.   If this is how the claim is structured, then Dr Drew’s quotes about the lack of explanation from the hospital also make sense. He is saying that his alleged refusal to accept the various recommendations was merely a pretext for the dismissal which was in fact prompted by the protected disclosures (whistleblowing). He is pointing out that the issues identified by the Trust are weak and poorly explained and that they are therefore not the true reason for the dismissal. In other words – contrary to the impression given in most of the reports – he is saying that he was not actually dismissed for sending the prayer and text message at all.

It appears that the facts of this case have been distorted in order to fit the popular narrative of ‘conscientious Christian hampered by politically correct bureaucrats’. The truth, as ever, is more complicated than that. Of course, we don’t know what the truth is yet, because the Tribunal hasn’t reached a decision. If I had my way, every news outlet that reported the hearing at this stage would be required to give just as much prominence to the Tribunal’s eventual findings.  I certainly will – if I can get a copy.

Meanwhile, as they say – the case continues.

 

 

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A load of ballots! Unite’s mandate for strike action distorted by the Mail

Posted on March 27, 2012 by Darren Newman

Today’s story is about industrial action ballots. It’s prompted by this report from the Mail Online which carries the headline:

Held to ransom by 1,000 tanker drivers: Petrol stations face closure as less than half union’s members vote for strike

Now I want to stress that I have no strong opinion on the merits of the tanker drivers’ dispute. I don’t really understand what the strike is about and have no opinion as to whether the drivers have a case or not, much less whether strikes are a good idea. I’m an anorak, remember – I only care about getting the law right.

The Mail’s report claims that ‘only a minority of union members voted for the strike’ and describes the ballot results like this:

Across these organisations, the union has 2,062 members.

But only 1,001 voted in favour of striking – 48.5 per cent.

The union achieved its slender 55 per cent majority for strike action because 12 per cent of members failed to vote.

London Mayor Boris Johnson yesterday renewed his demand for a change in the law to make strikes illegal unless at least half the union members vote in favour.

There is an important point being made here about the future of industrial action law. The idea that a strike ballot should only be lawful if a majority of those entitled to vote (rather than those actually voting) vote in favour of action has been kicking around for years. In fact it was in the 1997 Conservative Party manifesto. It is still very much a live issue today and I’m sure that without a Liberal Democrat running the relevant Government department the change would be on the way to the statute book already. As it is, it only takes one high profile strike to put the issue right at the top of the business agenda.

Seen in that context, it is clear that what the Mail is doing here is seeking to boost the argument for a change in the law by showing how narrow and undemocratic this particular decision to strike is.

Now, I don’t doubt that the total number of votes in favour of strike action is less than 50 per cent of the total number of those who were entitled to vote. But to express the results as the Mail does is to seriously mislead. Unite have not conducted one big ballot to decide whether to call a national strike.  They actually carried out 7 entirely separate strike ballots. They are required to do this by law as their workers are in dispute with 7 different employers.

In five of the ballots the workers voted for strike action and in two of them the workers voted against (with one of those two voting for action short of a strike). The union therefore has a mandate to call for a lawful strike against five of the seven employers. It is free to coordinate the strikes so that they happen on the same, or consecutive days, but it is important to bear in mind that there will be five different strikes, each based on a separate ballot.

It is not clear from the article whether the Mail understands that this means that for the two employers whose workers voted ‘no’ there will be no strike. Any strike in those two businesses would not have the support of a ballot and would be unlawful.  There is, therefore, no sense in which the workers who voted ‘no’ in those businesses are being outvoted by those in the other workplaces who voted ‘yes’.  None of the workers participating in either of those ballots – whichever way they voted – is going to be asked to take part in a strike. Their ‘no’ votes have won the day and have to be respected.

The article quotes the managing director of JW Suckling saying ‘I don’t really know what this strike is about as we have agreed our standards with the union’. Well, since the workers in his business voted overwhelming against any industrial action, he can rest easy. There will not be a strike or any other industrial action in his business. I hope the Mail made that clear to him!

What the Mail has done is present the figures so as to make the ballot sound as close and unfair as possible in order to fit with its own political agenda.  Had they reported the ballot fairly, they would have been forced to acknowledge that support for a strike in the five businesses concerned was solid. The full results of the ballots can be found in the links to the pdf documents at the bottom of this press release.  Those results show that in three of the five ballots the total voting ‘yes’ was more than 50% of those entitled to vote. If you were to amalgamate the votes in the ballots that supported the strike (you shouldn’t of course, but just for fun) you’d find that the results were as follows:

  • Total votes cast:                        1201
  • Votes for strike action:             827
  • Votes against strike action:     371
  • Spoilt ballot papers:                  3

That’s 68.85% in favour. I’m sure if Boris Johnson was re-elected Mayor of London with that sort of majority, he’d take it as a pretty convincing mandate.

One final point. It seems that total turnout across the five ballots was 78%. That suggests that 1,540 members were entitled to vote. The 827 ‘yes’ votes therefore represent 53.7% of those entitled to vote.  Whatever the rights and wrongs of the actual dispute, there is no denying that a clear majority of those who will be called upon to take part in one of the strikes will have voted in favour of strike action. Presenting the results as though the opposite is true is misleading and wrong.

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Telegraph jumps the gun on no-fault dismissals

Posted on March 26, 2012 by Darren Newman

Today’s employment law issue is  actually a quite straightforward mistake made in this column about red tape and recruitment. The Daily Telegraph is essentially writing about the administrative difficulties around the funding of apprenticeships. This is a subject about which I know nothing whatever so I’m assuming that everything the Telegraph has to say on the point is absolutely right.

We then get to this paragraph talking about the employment law changes due in April this year:

Among the changes, the qualifying period for workers claiming “unfair dismissal” will be extended from one to two years, while the smallest firms will be able to lawfully dismiss staff with a pay-off in return for them never bringing a tribunal claim.

The first part of the paragraph is of course quite right (its ’employees’ rather than ‘workers’, but not even I am picky enough to care about that). But what is that second bit? There is of course no law coming in that will exempt micro businesses from the normal unfair dismissal rules. The Government has issued a call for evidence on the issue, but we are still miles away from a law even being drafted, much less coming into force in a couple of weeks. It is, of course, a change that the Telegraph is very much in favour of. Perhaps they think that if they persuade everyone that it is already in force, we can save all that tedious mucking about in Parliament.

Now I have to admit that in pointing out this error, I do feel as though I’m being slightly petty. After all, it’s only one sentence in an article about something else altogether. All the same, it irks me that someone gets to write something in a national newspaper that is so obviously factually incorrect. The smallest effort at checking the status of the proposal would have prevented the error. That the error went through seems to display a depressingly cavalier attitude towards getting the facts on employment law right. Since the Telegraph expresses so many opinions about the state of employment law, you would hope that they would show a bit more interest in getting their facts straight.

Oh and many thanks to @HRbullets for pointing the article out to me. If you see any employment law story in the news that irritates you, please let me know!

 

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Spritzers: the employment law implications

Posted on March 23, 2012 by Darren Newman

The thing that I like about employment law most is that its based on stories. Stuff happens in employment law cases that is simply more interesting (to my mind) than the stories that revolve around tax law or conveyancing.

Inevitably this means that some of the stories that crop up will play well in the press. A good example today is an unfair dismissal case recently decided by the Employment Appeal Tribunal: Daughters v Aqua Financial Solutions

This has been reported by the Mail under the headline ‘Financial advisor sacked for reducing client to tears by demanding to know why she was only drinking spritzers’ The Telegraph use the headline ‘You’re not drinking enough, financial adviser told her tearful client’.

Now actually there isn’t much wrong with the either paper’s reporting of this case – although I am almost irrationally infuriated that the Mail refers in its subheading to an ‘Industrial’ Tribunal. No, apart from that, both articles are fair enough. Inevitably the facts have been simplified and the more interesting aspects of what the employee did have been highlighted. It would be silly to winge about this too much.

What interests me is that the report illustrates the sort of case that gets publicity. There are a number of aspects to this case that make it reportable:

1. Alcohol is involved. Misconduct cases that result from employees doing or saying something stupid when drunk always make for a good read. It also fits in with a current debate about whether we have a binge drinking culture. Are there also undertones here of it being particularly shocking when it is a woman who is getting drunk?

2. Some really good swearing. In this case the Claimant called one of the clients a rude name. I won’t repeat it here because I don’t know what sort of spam I’ll get as a result. The Telegraph gives us no clue other than that the name has four letters. The Mail gives us the first letter – and the judgement of the EAT spells it out in all its Anglo-Saxon glory

3. A good photo. Both the Mail and the Telegraph use the same photo of the claimant enjoying a day at the races. Without wishing to judge, she doesn’t seem to be the sort of person who would just sit quietly in the corner, sipping a spritzer and chatting about interest rates. The photo in this case really adds something to the story.

Spritzers feature heavily in both reports. The word is only used once in the 22 page EAT judgement and is by no means the centre of what the case is about.  I’m not complaining here – I don’t think either the Mail or Telegraph is obliged to explain BHS v Burchell or the obligation on a Tribunal to explain its reasoning. Its just that I doubt journalists have been trawling the EAT website to find interesting stories to write and that both papers happened to hit on the Spritzer line independently. So presumably one side or the other has fed this story to the press? Since the Claimant has won the appeal (though that by no means implies that she will win her case) it might be that she herself sought to publicise the case? Is the photo that both papers have used one that she has supplied?

What puzzles me is that – surely -no-one emerges particularly well from this story. If I was involved on either side I would want to keep the whole thing very low key. Is the publicity being used to try to force a settlement? Would that work? Is the party in question happy with the coverage? I’d love to know.

 

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