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!

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.

This week the big employment law news story has been the Court of Appeal decision in Woodcock v Cumbria Primary Care Trust. The issue in this case was whether the employer was justified in giving an employee notice of redundancy before rather than after a consultation meeting on the grounds that if notice was given afterwards he might reach the age of 50 before his dismissal took effect. If that happened then the employer would be liable to make a lump sum contribution to his pension scheme of something in excess of £500,000. The legal issue at stake was whether cost can be used as the justification for age discrimination.

The Daily Telegraph has a report of the case here with the headline ‘Older staff can be made redundant to avoid pension charges, judges rule’. This is actually an amended version of the article they published yesterday which gave the impression that the employer made Mr Woodcock redundant because he was 49 – which was simply not the case. Even this amended article, however, gives a completely misleading impression of what the case decided. For example, we can categorically say that the judges did not rule that ‘older staff can be made redundant to avoid pension charges’.

The Court of Appeal decision is disappointing in many ways because it rather fudged the issue of cost and justification and made no clear ruling that will help us in other cases. Mr Woodcock’s case is very unusual and it is clear that the particular facts of the case have influenced the decisions taken by both the Court of Appeal and the EAT.

This was an employee who had known for over a year that there was a risk of redundancy and who had had several conversations about his career prospects with the Chief Executive of the Strategic Health Authority. He was entitled to a one year notice period and the employer issued the notice just before a formal consultation meeting to ensure that his redundancy was not delayed until after his 50th birthday at which point the huge extra pension costs would kick in. He received a severance payment of £220,000.

It is difficult to put out of mind the fact that Mr Woodcock was not hard done by.He managed to stay in a well remunerated position for much longer than most employees whose job has vanished would normally expect and he received a pay off that would hardly leave him in abject poverty.

These facts are important when judging the discrimination argument. Remember, he was not made redundant because of his age. He was not selected for redundancy to minimise pension costs. The discrimination consisted in the fact that his 12 months’ notice was issued before rather than after the consultation meeting. That discrimination falls to be balanced against the £500K cost of issuing notice after he had tuned 49.

The key point to my mind is that the employer’s actions prevented Mr Woodcock from receiving a windfall. When his job disappeared in 2006, he could have had no reasonable expectation that he could have remained in employment until 2008 when he reached the age of 50.

The situation would be entirely different if an employer brought forward a reorganisation or dismissed an employee in advance of it in order to prevent him or her qualifying for enhanced pension rights. There the balance would be different and justification would be much harder to establish.

The Woodcock case frankly does not resolve the cost issue around justification which remains unclear. On the one hand, employers should not be able to discriminate just because its the cheapest option. On the other hand, where the cost of avoiding discrimination is out of all proportion to any actual harm the discrimination does, then surely the employer should be able to rely on that?

We should also remember that it is only in age discrimination that the issue of justification even arises when it comes to direct discrimination. In most cases the issue of cost will only apply where there is indirect discrimination.

We really do need a clear ruling on the issue from the Supreme Court and the Woodcock case, despite its unusual facts, may be the best option we have of getting that. In the meantime employers should be aware that  any age discrimination is likely to be difficult to justify. They certainly can’t make staff redundant to avoid pension costs.

UPDATE: Mrs Markleham’s blog does a great job of taking apart the original report from the Telegraph here.

Like many people in the employment law world I get frustrated when I read about my subject in the mainstream media. Nearly everything I read is simply wrong! Partly the problem is that the subject is quite technical and the journalists writing about it don’t have the time, the expertise, or the inclination to get it right. Partly, however, the problem is that employment law is a political football. It stands at the centre of the bosses v workers, capital v labour, rich v poor divide and is frequently pressed into service by those who have a political agenda on one side or the other.

Employment law is easily hijacked by a ‘political correctness gone mad’ agenda. It is heavily influenced by European regulation and so we also have to contend with the whole Eurosceptic thing. Increasingly, employment law and human rights law are developing a relationship  – and that opens up a whole other can of worms.

As a result of all of this, employment law reporting tends to have little to do with what employment law actually says or means and the debate is often strident and overblown.

In this blog, my plan is to explain and comment on the employment law issues being raised in the news. This may help some people understand what is really going on, but chiefly it should give  me something more constructive to do than sit at my computer shouting at the Mail Online or the Daily Telegraph website.

It would be great if other people could join in the discussion – but please, keep your comments within the band of reasonable responses (geddit?).