Reforming NDAs – why it won’t solve the real problem

Posted on June 11, 2019 by Darren Newman

The first thing to be clear about is that almost any settlement of a potential Employment Tribunal claim will include a confidentiality clause. This may be called a non-disclosure agreement or an NDA. If you are a journalist. the term you probably want to use is ‘gagging clause’.

If the parties are going to settle a case then they both need to be confident that the matter has indeed been settled and will not be resurrected in some other form. Where the case involves allegations of improper conduct then in most cases a party will only settle the case on the basis that those allegations – which may well be strenuously denied – will not be repeated.

Banning non-disclosure agreements is simply not an option in a system that encourages parties to settle employment disputes before they are heard by the Employment Tribunal. It is not going to happen.

So why have MPs on the Women and Equalities Committee called for NDA’s to be banned as reported by the BBC here?

Well they haven’t. The Committee’s report does not actually call for a ban. Instead it makes a wide ranging series of recommendations about how complaints of sexual harassment should be dealt with. Central to the report is a concern that there is an imbalance of power between an individual employee making a complaint and a large employer with the resources to fight that complaint aggressively, threatening the employee with costs if he or she (usually she in this context) refuses to settle the case on the terms being offered.

None of the committee’s recommendations involve NDAs being banned. Instead the Committee says that their scope should be more clearly defined and that employees should be entitled to proper advice – funded by the employer – as to what they can and cannot disclose under the agreement.  There should also be clampdown on employers and lawyers who use unenforceable confidentiality clauses to intimidate employees into silence.

Most of these recommendations seem sensible enough to me. In fact is difficult to see anyone having a real objection to them. As far as I am concerned they can join the list of employment law reforms to be made as soon as we have a Government able to concentrate on something other than Brexit or who the next Prime Minister should be.

Other recommendations are more difficult. To my mind the most radical is this one:

14.We call again on the Government to urgently improve the remedies that can be awarded by employment tribunals as well as the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages and there should be a presumption that tribunals will normally require employers to pay employees’ costs if the employer loses a discrimination case in which sexual harassment has been alleged. The bands in the Vento guidelines should be increased significantly to take into account the non-financial impact of discrimination. These changes should be made within the next two years. (Paragraph 67)

This would be a real game-changer. It gets to the heart of the imbalance between employee and employer in the Tribunal system. The uncomfortable fact is that bringing a Tribunal claim for harassment is so gruelling an experience that it’s a border-line irrational thing to do. The prospect of recovering legal costs and winning punitive damages if successful might well encourage some to proceed with a claim rather than settle for a modest pay-off with an NDA.

But there is little to no prospect of this proposal being picked up by Government. It isn’t realistic to expect the costs regime for sexual harassment cases to be different from that in other cases and if you make it normal for an employer to have to pay the successful employee’s costs, then the pressure would be overwhelming to make employees pay the employers’ costs if their claim fails. Making costs ‘follow the event’  –  so that the loser pays the winner’s costs – would transform the system, but it is not clear that this would be to the benefit of claimants.

Perhaps the real problem lies not in the individual features of the Tribunal system, but in the nature of the system itself.  If you believe that you have been discriminated against in the UK then enforcing your legal rights is down to you. You can hire lawyers to help you or you may be a member of a trade union that will back your claim, but you basically have to fight your own case.

The process is, by its nature, adversarial. There is little to encourage an employer to be introspective and consider where it might have gone wrong. Once it is being sued for discrimination it is likely to want to defend itself. That can mean defending those accused of harassment and attacking the honesty and motives of the claimant. Taking a case to a Tribunal can be horrible and I would never criticise someone for agreeing to accept a settlement – and the NDA that goes with it – rather than taking the case all the way.

We should also remember that being wrongly accused of discrimination is also horrible and it would be naïve to assume that it never happens. Many of the employers who reach settlements would argue that the confidentiality clause merely protects their managers from being subjected to further false allegations. Settling a case – even for a considerable sum – is not always a sign of guilt.

It is just possible that this adversarial process is not the best way to eliminate discrimination and harassment in the workplace.

An alternative approach might be to have a body that can carry out its own investigations into allegations of harassment and require employers to cooperate in eliminating unlawful behaviour. The Equality and Human Rights Commission could in theory fulfil that role, but it is currently set up and resourced more as a pressure group. The enforcement action it does take is limited to high profile investigations or intervening in landmark cases – it does not investigate individual allegations of discrimination against employers who are not in the public eye.

If the Government was really committed to eliminating harassment and discrimination it would be looking at revamping the Equality Commission to give it real enforcement powers that it could actually use. But this means spending money on a Quango and I don’t see any of the current candidates for Prime Minister being likely to commit to that. Instead we will see some tweaks to the law on NDA’s to provide better information and some safeguards against abuse. Politicians will then be able to claim that they have done something about the problem. But as long as the whole burden of fighting discrimination is placed on the victims, then well-resourced employers will still be able to buy their way out of trouble.

 

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Posted in Employment Tribunals, settlement agreements, Uncategorized | Tagged , , , | Leave a comment

New (and rather modest) proposals on pregnancy and redundancy

Posted on January 25, 2019 by Darren Newman

On a dull and extended train ride home last night I was perked up by a report that the Government was extending the rights of pregnant women. The report from the BBC (based on this Government press release) says:

The government proposes extending legal protection against redundancy for pregnant women for six months after they return to work.

There is a rhetorical sleight of hand here. What would you think ‘legal protection against redundancy’ meant? Weary traveller that I was, I thought the idea would be that it would be unlawful to dismiss someone for redundancy within six months of them returning from maternity leave. That would be a bold proposal. The law currently prohibits dismissing someone because of pregnancy or maternity, but does not prevent a pregnant employee from being dismissed for some other reason such as redundancy. ‘Legal protection against redundancy’ sounds like a major reform.

Of course in the cold light of day – and now that the actual proposals have been published – it turns out that the Government’s plans are much more modest than that. The clue is that the Government is proposing to ‘extend’ the legal protection – it is widening an existing protection, not creating a bold new one.

The existing right is Reg 10 of the  Maternity and Parental Leave Regulations 1999 which requires a woman being made redundant during maternity leave to be offered alternative work when there is a suitable available vacancy. The Government is proposing to extend that right so that it begins when the women informs her employer that she is pregnant and continues to apply for six months after her return. The Government also suggests making similar provision in relation to employees taking shared parental leave and adoption leave  – who currently enjoy the same right to preferential access to suitable alternative work during the period of their leave as women on maternity leave (see here for adoption leave and here for shared parental leave)

This is a perfectly sensible reform – but let’s not overstate its impact. The proposal would not stop an employer from making an employee redundant when she was pregnant, on maternity leave, or recently returned. It would simply mean that if it did so – and it had suitable alternative work available – then it would be obliged to offer her that suitable alternative work. In real life, this is not much of a change.  It would have an effect when the redundancy is part of a wider exercise in which a number of people are being made redundant and there is a limited number of suitable alternative vacancies available. The protected employee will then go to the front of the queue. But the real problem with redundancy and pregnancy discrimination is surely the ‘pool of one’ selection where there is no wider reorganisation and the individual employee is just told there is no longer a job for her. The employee might believe that the situation has been engineered as a result of her maternity leave, but direct evidence of that fact can be hard to come by.  In such a case there is no queue for her to go to the front of and if there was alternative work available – there usually isn’t – it would already give good grounds for a discrimination claim if she wasn’t offered it.

The consultation runs until the 5th April and you can respond here. As with all Government consultations we should not rely on swift implementation. Government my well be preoccupied with other matters come April!

 

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Posted in pregnancy discrimination, Uncategorized | Tagged , , , | Leave a comment

Of course vegans are protected by the Equality Act!

Posted on December 3, 2018 by Darren Newman

A vegan is claiming discrimination after being sacked from his job at the League Against Cruel Sports. The emphasis of the BBC story is on whether or not Mr Casamitjana’s beliefs will be protected under the Equality Act as a philosophical belief. There is to be a hearing next year to decide the issue and if he is successful then a further hearing will decide whether or not his dismissal amounts to discrimination.

The BBC describes the case as a landmark development, given that there has been no ruling from the courts so far on whether or not veganism can amount to a philosophical belief. To be fair, they are simply quoting the employee’s lawyer, who is obviously keen to talk up the significance of the case.  But I don’t see this as a landmark case at all. Of course ethical veganism is capable of amounting to a philosophical belief. I can’t imagine anyone arguing otherwise.

Simply being a vegan will not be enough to amount to  a protected characteristic, however. The practice of not eating animal products will need to be part of an overall set of beliefs about the rights of animals that achieve the level of cogency and seriousness necessary to qualify under the Act. But given that the courts have already held that the test can be met by a belief in man-made climate change (Grainger v Nicholson) or the proper and efficient use of public money in the public sector (Harron v Chief Constable of Dorset Police) it would be downright astonishing if it was held that ethical veganism did not qualify as a philosophical belief.

The problem that Mr Casamitjana is likely to face is not in establishing that he has a protected characteristic, but in establishing that he has been discriminated against. He has to show that he was dismissed because of his belief in veganism. According to the BBC:

Jordi Casamitjana says he was sacked by the League Against Cruel Sports after disclosing it invested pension funds in firms involved in animal testing.

If that is really how he is putting his claim then I don’t see how he can win. Dismissing someone for complaining about your pension fund investment strategy might be unfair – depending on the circumstances – but it is not the same thing as dismissing someone because of their philosophical belief. Is he really arguing that the employer would have allowed other employees to make the same complaints that he did, but that they have chosen to dismiss him because of the beliefs that prompted his behaviour? That seems pretty unlikely.

It is not as though it is only ethical vegans who might object to the activities of the pension fund or choose to complain about them. Surely the employer is just going to say ‘we would have dismissed anyone who behaved in this way’. Why on earth would they take a more serious view of the employee’s conduct just because it happened to be motivated by his commitment to ethical veganism?  Direct discrimination is a narrow right – as the Supreme Court has recently held – confined to cases where it is the protected characteristic itself that is the reason for the treatment, rather than some other factor that is merely connected with it.

For what it’s worth, I don’t see that this is a case of indirect discrimination either. Indirect discrimination isn’t a consolation prize you get when your direct discrimination claim has failed – it has its own particular requirements. There needs to be a ‘provision, criterion or practice’ (PCP) which causes a particular disadvantage to a group sharing a protected characteristic. Suppose in this case that there was a PCP amount to a rule saying ‘don’t complain about the pension fund investment strategy’. I struggle to see how that causes a particular disadvantage to vegans.  All sorts of people might have cause to complain about different aspects of the strategy and it is difficult to see what disadvantage you suffer by complying with the employer’s instruction and not making a complaint.

If I were advising the League Against Cruel Sports – and I’m not – I would tell them to concede that Mr Casamitjana has a protected characteristic and focus on their argument that they didn’t discriminate against him.  I don’t see the point in wasting time and legal fees arguing that vegans aren’t protected by the Equality Act when they almost certainly are. It might seem sensible to oppose every aspect of a claim that you are contesting, but I don’t think it would be a good look for the League Against Cruel Sports to argue that ethical veganism is not serious or cogent enough to amount to a philosophical belief. Better, surely, to concede that point and focus on the reason for dismissal.

 

 

Posted in Equality Act, Uncategorized | Tagged , , , | 2 Comments

Supreme Court finds no discrimination in ‘gay cake’ case

Posted on October 11, 2018 by Darren Newman

Well I think the Supreme Court got it right – probably. In Lee v Ashers Baking Company Ltd they hold that there was no discrimination when a bakery refused to bake a cake for a customer bearing the slogan ‘support gay marriage’. The decision overturns the previous findings of the Northern Ireland county court and the Northern Ireland Court of Appeal.

This is something I’ve written about before and I’m going to try not to be too smug about how closely my analysis back in 2015 is reflected in the leading judgment of Lady Hale (though it’s almost uncanny!). In this post I just want to set out the basic reasoning in the decision and respond in a general way to some of the online commentary I have seen criticising it.

There are two judgments given in the case. Lord Manse deals with constitutional issues regarding the role of the Supreme Court in cases dealing with Northern Ireland legislation. That is very much one for the purists – lets just say that he concludes that the Supreme Court did indeed have jurisdiction to hear the appeals.

The interesting decision is from Lady Hale, with whom the other judges agree. She divides the case into three key parts:

  • The first deals with whether refusing to bake the cake amounted to direct discrimination on the grounds of sexual orientation. That claim is based on the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 but it is clear that her reasoning applies equally to any similar case brought in the rest of the UK under the Equality Act
  • The second part deals with whether the refusal amounted to discrimination because of political opinion under the Fair Employment and Treatment (Northern Ireland) Order 1998. This is a piece of legislation that it unique to Northern Ireland. The Equality Act in the rest of the UK covers discrimination based on religious or philosophical belief, but that is different from the Fair Employment and Treatment Order. The Order specifically protects political opinion while the case law under the Equality Act stresses that a mere opinion (as opposed to a philosophical belief) is not protected.
  • The third part looks at the application of the European Convention of Human Rights. Specifically it considers the right to freedom of Religion and belief  under Article 9 and freedom of expression under Article 10.

Taking sexual orientation first,  Lady Hale points out that the bakery refused to bake the cake because of the message printed on it, not because of the sexual orientation of the customer. Anybody, irrespective of their sexual orientation, would have met with the same refusal from Ashers if they had attempted to make them bake a cake saying ‘support gay marriage’.

That of course is not the end of the matter. The question is whether the refusal was ‘on the grounds of sexual orientation’ not whether it was ‘on the grounds of the sexual orientation of the customer’.  The Regulations in Northern Ireland (and the Equality Act in the rest of the UK) are drafted widely enough to cover what we tend to call discrimination by association. But association with what?

There was no evidence that the bakery objected to the sexual orientation of any of the people with whom the customer was associated. In other words, if a straight man had tried to order the same cake for a party that would be exclusively attended by other straight people, then the bakers would still have refused to bake it.  Support for gay marriage was not confined to gay people and could not be used as a proxy for the sexual orientation of individuals. As Lady Hale put it:

“In a nutshell, the objection was to the message and not to any particular person or persons.”

The Court’s view, it seems, is that discrimination by association only covers association with other individuals who themselves have the characteristic. At the heart of direct discrimination is less favourable treatment because of the protected characteristic of a person – albeit not necessarily the person bringing the claim. Mere association with the concept of a protected characteristic is not sufficient. Now you might disagree with that approach (see this article by academic Paul Johnson) but ultimately the law is what the Supreme Court says it is, so there we are.

As for political belief, Lady Hale is less clear. She seems to think that the answer may be the same as with the sexual orientation point – that the bakers objection to the cake was not the political opinion of the customer of anyone else, but the fact that baking the cake involved them promoting a particular message that they objected to. It would have been quite different for example if the bakery refused to serve customers who were known to support gay marriage – but that is not what happened here.

On the other hand there is a much stronger association between the message on the cake and the political opinions of  the customer – and you could more easily infer that the customer shared the political opinion described on the cake than you could infer that he – or anyone else – was gay. On that basis she seems to accept that the refusal to bake the cake could in theory amount to discrimination based on political opinion (remember this is unlawful in Northern Ireland, but not in the rest of the UK) and then turns to consider whether a requirement to bake the cake would violate the human rights of the bakers.

Now I am not a human rights lawyer and I don’t feel qualified to critique Lady Hale’s approach here. But her view – and the view of the other members of the Court – is that being required to bake the cake would have meant that the bakers were being required to express a message with which they deeply disagreed.  Freedom of expression included the freedom not to express a belief and the requirement to bake the cake would have interfered with that right. No justification had been shown for compelling the bakers to express an opinion with which they disagreed and so the Court would in any event have interpreted the Fair Employment and Treatment Order in such a way as to find that there was no discrimination when  they refused to bake the cake.

There is an interesting thread on the Human Rights aspects of the case by Adam Wagner here but I would emphasise that the Supreme Court did not feel the need to refer to any human rights concepts when dismissing the claim of sexual orientation discrimination. It was only in the rather more uncertain realm of political opinion discrimination – which is unique to Northern Ireland – that they brought freedom of expression into the mix.

It is also worth stressing that this decision does not mean that businesses can refuse to provide their services to gay people – or that employers are free to discriminate against them. The Supreme Court has not carved out an exception from discrimination law to protect the right of people who have a religious objection to someone’s sexual orientation or (in Northern Ireland) their political opinion. What the Court has said is that direct discrimination is confined to the less favourable treatment of individuals either because of their protected characteristic – or the protected characteristics of other individuals. Discrimination law protects people rather than opinions. I think that that is right.

It feels slightly odd to be supporting a decision that has disappointed people whose world view I share and delighted those that I have little sympathy with. But on balance I think the Court’s approach is consistent with what the legislation actually says.

There is much more to pick apart in this case – and academics will be writing essays about it for years to come. I’ll certainly be writing and talking more on the subject and you can keep updated by subscribing to my newsletter. To see what I get up to in the nearest thing I have to a day job, please visit my website. 

 

Posted in Equality Act, Fair Employment, Sexual Orientation | Tagged , , , , | 6 Comments

My Pimlico Plumbers Prediction (updated)

Posted on June 12, 2018 by Darren Newman

UPDATE: so the decision is out and it seems to be mainly Option 1 (see below). Lord Wilson’s decision does, I think, move the law on a bit when it comes to the right to send a substitute. When looking at that right it might be appropriate to consider whether personal service is still a ‘dominant feature’ of the relationship. However it remains to be seen whether this would work in a case with a clear and unambiguous substitution clause. On balance the law remains much as we already thought it was. 

It is also worth emphasising that this case really has nothing to do with the gig economy. Pimlico Plumbers (however this case eventually turns out) were providing reliable,  regular and well-paid work to their plumbers. True gig economy cases tend to turn on whether there is any obligation to provide work at all and this case says very little about that. In the Uber case that will be before the Court of Appeal later this year a key question is whether the drivers are working ‘for’ Uber at all – or whether they are working for each individual passenger. I don’t think anything said in this case is a game-changer when it comes to the gig economy cases currently making their way through the system.

I‘ll have lots more to say on where we now are with employment status in the June edition of the Range of Reasonable Responses Newsletter. You can subscribe to that here.

Tomorrow morning the Supreme Court gives its decision in Pimlico Plumbers v Smith. At issue is whether Mr Smith was ‘in employment’ for the purposes of the Equality Act and a ‘worker’ for the purposes of the right to paid annual leave. The Tribunal, the EAT and the Court of Appeal all said he was both. Were they right?

Now the problem is that I am away at the moment and in a different time zone. When I wake up on Wednesday the decision will have been out for hours and by the time I get back it will be old news.  So I thought I would get my opinion on the decision in early despite the slight disadvantage of not having read it. I hope that what follows covers all the bases (go Nats!) and when the decision comes you can just disregard the options that turned out to be wrong!

Option 1: The Supreme Court upholds decision on basis that Tribunal was entitled to find the facts as it did  

I knew this would happen. In fact I was surprised that the Supreme Court even agreed to hear this case.  Whether or not someone is a worker or an employee is largely a matter of fact for the Tribunal to decide. Once the Tribunal had found that Mr Smith was not running an independent plumbing business and had agreed to work ‘for’ Pimlico Plumbers the result was really inevitable. The employer’s argument that there was no obligation on him to perform the work personally was never going to work. Yes he could get another Pimlico Plumber to cover for him, but that is really just a form of shift swapping – not a right to subcontract the work. Nor was the Supreme Court ever going to be impressed by the suggestion that being able to bring a ‘plumber’s mate’ in to help with the work made a difference to his status.

The disappointing aspect of this decision is that the Court has not moved the law on – or even clarified how it works. But Judges don’t like saying something new if they don’t need to. All of the interesting legal arguments about personal service, mutuality of obligation and the potential difference between being a worker and being covered by the Equality Act were raised on Mr Smith’s side and he didn’t need to win those points to win the case. Pimlico plumbers were really just picking holes in the Tribunal’s findings of fact – and they were never going to get far doing that.

The upshot is that this eagerly awaited case is a bit of a damp squib. Important for Mr Smith, but not a game changer for the rest of us.

Option 2:  Smith wins and the Court takes the opportunity to significantly widen the scope of employment status

I had a feeling this might happen. When the Supreme Court gave Pimlico Plumbers permission to appeal on a case that seemed to turn on its facts, I thought that they might have been looking for an opportunity to move the dial on employment status. Just as I suspected, Lady Hale has delivered a decision that cuts through all of the tedious faffing about over the right to send a substitute and made it clear that just because a worker can send a substitute, that does not mean that he or she is free of any obligation to perform work personally. if the parties clearly expect that the work will usually be done by the worker then that is enough. This is a common sense ruling that, funnily enough, echoes one of the key recommendations of the Taylor Review. It would have taken the Government years to get around to doing what the Supreme Court has done with the stroke of a pen.

We should also all be grateful that the Supreme Court has made such a clear ruling on what is meant by ‘mutuality of obligation’ – particularly in the context of worker contracts. frankly the case law was getting really bogged down on this issue so well done to Lady Hale for putting the matter so clearly!

While this was not a case about the gig economy, it will certainly worry gig economy employers. The upshot is that you can no longer bung a substitution clause into a contract and rely on the fact that it will only be used by a small number of workers – and not very often. If I were Deliveroo, I’d be gearing up for another union recognition claim.

Option 3: Pimlico Plumbers wins and the Supreme Court asserts the primacy of the written contract

Just as I thought! I suspected that something was up when the Supreme Court gave Pimlico Plumbers permission to appeal. They had to think that there was a serious point of law being raised by the ’employer’. In this decision the Supreme Court has reasserted that the written contract is the place to go when determining the nature of the relationship between the parties. Looking at ‘what happens in practice’ only gets you so far and the clear terms of a written agreement can only be disregarded when they are shown (as in Autoclenz) to be completely at odds with what was actually intended by the parties at the time the contract was made. The contractual documentation in this case was not as clear as it might have been, but the Tribunal did not pay sufficient attention to it and a new Tribunal will have to look at the issue again.

This case will put pressure on the Government to carry through the reforms suggested in the Taylor review. Until that happens it is clear that gig economy employers will now find it easier to persuade Tribunals that those who work for them are independent contractors with no employment rights.

I think that just about covers it.

My feeling is that the first option is the most likely and that the case will be a bit of an anti-climax.  Option 2 would be the best result for the development of the law and is the one I’m rooting for. Perhaps it’s a bit much to hope that they will firmly stamp on the use of substitution clauses and sort out the current mess over mutuality of obligation, but I live in hope. Option 3 would be a victory for legal formalism over common sense and leave tens of thousands of workers without legal protection because of some obscure paragraphs inserted into a contract that they have probably never read, much less negotiated. I doubt the Supreme Court will want to do that, but you can never really tell until the decision is out.

Of course knowing my luck the decision will be some sort of hybrid of two or more of these options or some fourth option I haven’t thought of. When that happens I will take some comfort from having predicted that too.

Posted in Employment status, Taylor Report, Uncategorized | Tagged , , , , | 4 Comments

‘Last Chance Saloon’ for gender pay gap reporting?

Posted on March 27, 2018 by Darren Newman

With just days to go before the deadline for large employers to submit their gender pay gap information (30 March for the public sector, 4 April for the private and third sectors) the press is full of concern that many employers (no-one really knows how many) have not yet published their figures on the Government website.

Why?

There’s no requirement to hand anything in yet. Nobody is late with anything. In fact more than 4,000 employers have published information ahead of the deadline. They are like those people who did their homework on a Friday night so that they would have the weekend free. Personally I never did my homework until Songs of Praise came on and to this day I feel a small knot of anxiety in my stomach when I hear the theme tune.

I expect there will be a late flurry of employers submitting their data, but no doubt there will be many who then miss the deadline. What happens then? Well yesterday the Equality Commission published its strategy (complete with flowcharts) for enforcing the Regulations.

In a press release, the Commission’s Chief Executive said:

Employers with 250 or more staff still have time to report their gender pay gap. The clock is ticking and with just 10 days to go, those who haven’t reported really are entering the last chance saloon. This is not optional; it is the law and we will be fully enforcing against all companies that do not report.

Tough talk from the Sheriff there – but what does the Commission think ‘fully enforcing’ looks like?

In the public sector the procedure is based on the Commission’s as yet unused powers to enforce the public sector duty to promote equality (which is the mechanism by which the duty on public sector employers to report gender pay gap data was imposed). I don’t think we need to worry about public sector employers, though. They are bound to publish their figures, even if some of them may clearly have got them wrong (I’m looking at you Bolsover District Council).

When it comes to the private and third sectors, an employer who fails to publish its gender pay gap will – the Commission claims – face a series of steps:

  • Step 1: The Commission will write to the employer requiring them to publish their data within 28 days
  • Step 2: If the employer does not comply, the Commission will instigate a formal investigation. Terms of reference will be prepared and the employer will be able to make representations on those terms of reference before the investigation begins.
  • Step 3: If the investigation reveals that the employer has not complied with the Regulations,  the Commission will issue an unlawful act notice giving the employer 14 days to prepare a draft action plan setting out how it intends to comply with its duty.
  • Step 4: Within six weeks of receiving the draft action plan the Commission will either approve it or issue a further notice stating that the plan is inadequate. In that case, the employer will have to provide a revised draft within 21 days
  • Step 5: If the employer does not comply with its own action plan the Commission will apply for a court order requiring it to do so.
  • Step 6: If the employer fails (without reasonable excuse) to comply with that order then it will be guilty of an offence and may be fined.

Now you would be forgiven for thinking that this procedure for enforcing a requirement to publish specific data is rather unwieldy. Is there really a need, for example, for employers to submit draft action plans for review by the Commission? Since we all know what is being investigated, do we really need draft terms of reference for each investigation to be submitted to the employer for comment? Why doesn’t the Commission simply say ‘publish your data by the end of the month or we’ll take you to court’?

The answer is that the Commission has no choice. The procedure set out in the strategy is the procedure that the Commission is required to follow when it believes that an employer is committing an ‘unlawful act’ as defined by the Equality Act 2006. The Act sets out the Commission’s enforcement powers and they are quite specific. The Commission cannot just take someone to court or impose a fine. It has to conduct a formal investigation first. Only then can it issue an unlawful act notice (although as far as I can tell, no case has ever actually got to this stage). Even an unlawful act notice can’t just instruct the employer to comply with the law – it has to require the employer to come up with a plan setting out how it will stop acting unlawfully. It is only if the employer then fails to comply with the plan that the Commission can get a court order seeking to enforce it – and it is only if the employer breaches that court order that a fine can be imposed.

Hitherto, even getting to the formal investigation stage has been a big step for the Commission to take. The 2006 Act clearly envisages that a formal investigation will be a drawn out and complicated investigation of allegedly discriminatory practices, which is why it is so prescriptive about the procedure for conducting one. To see what’s involved, have a look at the 2016 investigation into the Metropolitan Police.  It’s over a hundred pages long and was obviously a major piece of work (I’m pretty sure, by the way, that this is the only formal investigation that the Commission has ever conducted).

It is manifestly absurd to apply the formal investigation process to a simple failure to publish data. But that is the logical consequence of the Commission insisting that its general powers can be used to enforce the gender pay gap regulations. My view is that they can’t. Failure to comply with the regulations is not an unlawful act within the meaning of the Equality Act 2006 and so the Commission’s general enforcement powers don’t apply.  I explained why I think this back in January 2017 and in the year since then I haven’t seem anything to change my view. If anything, the hopelessly overblown enforcement procedure the Commission finds itself proposing reinforces the point.

Large employers should of course publish the data that is required. The overwhelming majority will do so because they will want to comply with their legal obligations. Besides which, missing the deadline may cause  embarrassment and lead to some awkward correspondence. I expect that the Commission will indeed write to a number of employers warning them to publish their data and I doubt that any will want to test my theory that the Commission doesn’t actually have the power to take things further.

Things might get more interesting, however, if the Commission wants to challenge the accuracy of an employer’s figures. An employer might well want to resist an investigation that involves the Commission poring over its payroll information, checking its maths. Perhaps it will be at that stage that the courts will be asked to rule on how far the Commission’s powers go.

 

Posted in gender pay gap, Uncategorized | Tagged , , | 8 Comments

Government responds to the Taylor Review

Posted on February 7, 2018 by Darren Newman

I imagine that Matthew Taylor is pleased with the response the Government has given to his “Good Work’ review of Modern Employment Practices. A (mainly) positive response to all but one of his recommendations (the Government seem determined not to try and mess about with self-employed National Insurance Contributions) is probably better than he was hoping for.

Despite the positive noises coming from No 10, however, the Government has not actually committed itself to much. Most of the proposals, even if they are welcomed in the Government’s formal response, are then sent out for consultation.

Four consultation documents have been published:

employment status: this looks at the proposals on the definition of an employee and a worker – as well as the proposals made by the Taylor review on the calculation of working time for those using ‘gig-economy’ platforms like Uber and Deliveroo.

agency work – this covers in particular the proposal to abolish the Swedish Derogation. This is a much abused exception in the Agency Workers Regs that allows agencies who directly employ the workers they supply to avoid having to match the pay of the end user if they offer sufficient pay between assignments.

transparency in the labour market – covering the Review’s proposals on written statements of terms and conditions, holiday pay, continuity of employment, the right to request flexible working and the Information and Consultation of Employees Regulations.

enforcement of employment rights – looking at the problem of unpaid tribunal awards and repeat offenders.

Sometimes when a Government issues a consultation it has a very clear proposal that it is putting forward and is seeking detailed views on. That is not the case here. The employment status consultation essentially just asks what we think of the Review’s proposals – and the other consultations are more like a call for evidence, asking employers to give their experience of how the rules currently work and what they think the impact of changes would be. Of course it’s good to be open-minded – but this does rather smack of kicking the can down the road.

The Government could for instance, have developed the Review’s recommendations into some concrete proposals and consulted on those. On employment status in particular, Government has been looking the issue for years and we still haven’t seen anything concrete.

I am of course a bit of a sceptic when it comes to redefining employment status. I think it’s very easy to say ‘we should come up with a new, clear and unambiguous definition’, but rather more difficult to actually come up with one. The fact that the consultation  seems to concentrate on the benefits or otherwise of codifying the existing case law – essentially taking the principles set out in the cases and writing them into the statute – rather makes my point. I cannot for the life of me see the point of that approach, but I suppose we will be having this argument for some time to come.

So what happens now?

Well the consultations run until various dates in May – or 1st June in the case of employment status. I would be astonished if we saw a Government  response before the end of the year. Once the Government has decided what it actually wants to do it can then look at coming up with an Employment Bill (most of these changes will require primary legislation) and possibly some further consultation on specific proposals. Perhaps – if the Government was really determined – we could see something being put forward in the Spring of 2019, with a view to the changes coming in during late autumn or (more likely) early 2020.

How likely do we think that is? Does the Government really have the bandwidth to carry out a major reform of employment law? Or could it be that other priorities will crowd out a re-think of employment status and the rules on continuity of employment? How confident are we that Theresa May will stay in position over that time to drive these changes through? Would Jacob Rees Mogg or Boris Johnson share her enthusiasm for improving workers’ rights?

Fundamentally I just don’t see any of this actually happening. Perhaps some of the minor changes that don’t need detailed legislation will make some progress, but I won’t be holding my breath for any of the big ticket items.

Of course, it will be fun over the next couple of years to speculate about how the definition of employee and worker could be improved, but I suspect that much greater progress will be made in the courts than in Parliament. The Supreme Court hears the Pimlico Plumbers case this month. In the end, I think that case will have a bigger influence on employment status than anything the Government has published today.

 

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Posted in Employment status, Taylor Report | Tagged , | 1 Comment

Iceland, equal pay and enforcing the gender pay gap regulations

Posted on January 5, 2018 by Darren Newman

So the internet informs me that Iceland has become the first country in the world to make it illegal to pay men more than women.

Screenshot 2018-01-05 00.05.55

Iceland has not, of course, passed a law saying that it is illegal for an employer to pay any man more than any woman. How would that even work? Obviously we are talking here about paying men more than women who are doing equal work – and lots of countries (including the whole of the EU and Iceland) have had laws about that in place for decades.

What has come into force in Iceland on 1 January this year is a requirement that employers with 25 or more employees should implement a previously voluntary Equal Pay Standard in their pay systems. As far as I can tell this is basically a requirement for larger Icelandic firms to adopt a transparent pay system so that it can be demonstrated that men and women are getting equal pay for work of equal value. It’s explained properly in this article from the Icelandic Women’s Rights Association.

I’m sure that’s great for them. And I can see why people might argue that a similar rule should be adopted for the UK. But it won’t be. We are a million miles from subjecting employers to that level of control.

Employment law is a very culturally specific thing and different countries have entirely different ideas about the extent to which employment is regulated – and who does the regulating. To look at just one point of difference –  in Iceland, just over 85 per cent of the workforce is a member of a trade union, compared with less than 25 per cent union membership in the UK. It is inevitable that employment law is going to work differently in Iceland and we can’t expect to copy it.

Gender Pay Gap Reporting

Nevertheless Iceland’s law is in marked contrast to the UK’s almost entirely pointless requirement for large employers to report their gender pay gap. This requires absolutely no meaningful transparency about who gets paid what or how employers reward employees.  Instead we get some very selective statistics, shorn of all context and telling us next to nothing of any use (comments below please).

And that is assuming that the figures being reported are even accurate. The FT has done some really good work picking apart some of the more suspiciously improbable  entries on the Government website. Just wait until there are more than 9000 entries – how on earth will you be able to tell whose figures are accurate and whose aren’t?

Personally I don’t think employers have much incentive to get their figures right. I’ve written before about why I don’t think the Equality Commission can do much to enforce the gender pay gap in the private sector. My point is that the Commission can only act where the employer is acting in breach of the Equality Act 2010 – and the Equality Act does not require employers  to report their gender pay gap. I stand by that analysis.

So I almost admire the chutzpah of the Commission publishing a draft strategy for enforcing  the Regulations accompanied by a press release saying:

Businesses failing to comply with gender pay gap reporting regulations could face unlimited fines and convictions, the Equality and Human Rights Commission has warned as it published its enforcement strategy.

As the regulatory body responsible for ensuring that all employers with over 250 employees report their gender pay gap statistics, the Commission has set out its enforcement policy for consultation.

Although it will take steps to encourage compliance and engage informally with employers who are in breach of the regulations as a first port of call, it will ultimately enforce against all employers who do not publish their gender pay gap information.

This is nonsense.

One caveat is that public sector employers are in a more vulnerable position because their obligation to publish is part of their statutory duty to promote equality – and the Commission has much clearer powers to intervene where a public body is not complying with its duties.

But even if the Equality Commission has the power to do something about gender pay gap reporting – that isn’t a power that it is actually going to use in real life. You only have to read their proposed approach to see the absurdity of it. The Commission says that it will focus its efforts on those employers who do not comply with the duty to report their gender pay gap at all. If the Commission finds an employer that has not reported, this is how it says it will approach the issue of enforcement:

  • It will write to the employer pointing out their obligation to report and giving them 42 days to comply.
  • If the employer still does nothing the Commission will then initiate a formal investigation – giving the employer 14 days to make representations on draft terms of reference and writing a draft report within 28 days of the receipt of the evidence that is requested.
  • The employer will then have the opportunity of reaching an agreement with the Commission to provide the appropriate gender pay gap information within a specified period.
  • If the employer refuses to enter into such an agreement or breaches its terms then the Commission will issue an ‘unlawful act notice’. That would require the employer to come up with a draft action plan explaining how they will remedy their continuing breach.
  • Within six weeks of the receipt of that plan the Commission will respond saying whether or not they accept it. If they do, then it will come into force six weeks later. If they do not approve the draft action plan they will issue a notice requiring a revised draft to be produced within 21 days.
  • If the employer fails to comply with the action plan the Commission will apply for a court order requiring the employer to comply.
  • If the employer does not comply with the order then it commits an offence and may then face an unlimited fine.

Does this seem like a sensible way chivying along some employers who have not got round to entering a few (largely meaningless) figures on a Government website?  The Commission’s enforcement powers are designed for employers whose ongoing practices amount to a serious breach of equality law. They really don’t have any sensible application to the reporting of gender pay gaps. Whatever the legal position, it is inconceivable that any employer will ever be taken through the whole process to the point where it is actually fined. Telling employers that they face an unlimited fine if they don’t comply with gender pay gap reporting is just silly.

The fact is that the Commission’s role in enforcing the Equality Act is largely theoretical. They publish guidance and information; they commission research and sometimes intervene and make submissions in important legal cases. But as for using their formal enforcement powers? Not really. We can debate the potential scope of unlawful act notices, but as far as I can tell, the Commission has never actually got as far as issuing one. You can count the number of formal investigations it has undertaken on the fingers of one hand. The idea that employers up and down the country who have not reported their gender pay gap will end up being taken to court by the Commission is for the birds.

So forgive me if I treat the Commission’s consultation on a ‘strategy’ for enforcing gender pay gap reporting with a certain amount of scepticism. Also – it’s one of those annoying consultations that asks a lot of  closed questions to make it really easy to plot the responses on a graph. I won’t be answering those questions, but I will be asking one: what resources will the Commission be allocating specifically to enforcing the gender pay gap regulations? When we know the answer to that question, we’ll have a much clearer idea of what their strategy actually is.

 

Posted in Equal pay, Equality Act, gender pay gap, Uncategorized | Tagged , | 2 Comments

The Classic Employment Law Songbook

Posted on December 15, 2017 by Darren Newman

Over the past year I’ve been recording a series of podcasts looking at classic employment law cases and seeing what relevance they have today. I try to put each into its historical and legal perspective and one part of that is to check out whatever was the number 1 hit single at the time the case was decided.

Since it’s Christmas, and as the equivalent of bringing a game in on the last day of term, here are the 14 cases I’ve covered so far this year – with their associated No 1 hit. There are some real clunkers in there (James v Eastleigh) but some that are real masterpieces (Abernathy v Mott).

You can subscribe to the podcast here and if you are a Spotify person I’ve done a playlist here

Enjoy – and have a happy Christmas.

1 British Home Stores v Burchell

Still the leading case on conduct dismissals – with a three point test that can be adapted to all sorts of situations.

1978 You’re the One that I Want, John Travolta & Olivia Newton John

2 Polkey v AE Dayton Services Ltd

The end of the ‘no difference rule’ in deciding on liability for unfair dismissal – but the introduction of the ‘Polkey deduction’ means that an unfair dismissal win is often a hollow victory for claimants.

1987 China in your Hand, T’Pau

3 King v Great Britain China Centre

Before we had the reverse burden of proof in the Equality Act we had this case which allowed Tribunals to look to an employer for an explanation when the effects seemed to point to discrimination. Frankly, I think this made much more sense than the current position.

1991 Sleeping Satellite, Tasmin Archer

4 James v Eastleigh Borough Council

Never has a man’s quest to avoid paying 75p to use a municipal swimming pool had such profound consequences. We are still working out what this case has to say on the meaning of direct discrimination

World in Motion, New Order

5 Western Excavating v Sharp

The defining case on the nature of constructive dismissal – and a decision from Lord Denning into the bargain!

 Name of the Game, Abba

6 Delabole Slate Ltd v Berriman

There’s more to an ETO reason than E, T and O! Also a neat case on the reason for a constructive dismissal.

1985 – Move Closer, Phyllis Nelson

7 Carmichael & anor v National Power

There’s nothing new about employment status cases. This one looks at the alleged employment status of two casual workers who gave tours of their local power station.

1999 – She’s the One, Robbie Williams

 8 Iceland Frozen Foods Ltd v Jones

This is case is probably quoted more often in employment law than any other case. Use it to argue that the Tribunal has adopted a ‘substitution  mindset’ when deciding the fairness of a dismissal.

 1982 Fame, Irene Cara

9 James v Waltham Holy Cross

Employment law doesn’t always move as quickly as we sometimes claim. This case from 1973 still gives a good outline of the principles involved in dismissing fairly for poor performance.

1973 – Can the Can, Suzi Quattro

10 Griggs v Duke Power

We cross the Atlantic in this episode to look at the origin story of indirect discrimination.

1971 – One Bad Apple, The Osmonds (US No 1)

11 Williams v Compair Maxam

We still quote this case when looking at the principles of fair selection for redundancy – but did the EAT ever think they were laying down general guidelines?

1982 – Land of Make Believe, Bucks Fizz

12 Abernathy v Mott, Hay and Henderson

This case doesn’t get as much attention as it should. Being clear about the reason for dismissal is key to understanding whether a dismissal is fair or not.

1974 – Tiger Feet, Mud

13 East Lindsay District Council v Daubney

This case established the importance of discovering the ‘true medical position’ and consulting with the employee before dismissing for long-term sickness absence. But how much has the development of disability discrimination law changed the approach that employers must take?

1977 – Knowing Me Knowing You, Abba

14. WM Brooks & Son v Skinner

And we end with a Christmas special. An employee sacked for skipping the nightshift after over-indulging at the Christmas party. But when you hear what was number 1 at the time of the party (back in 1982) you won’t blame him for having drink.

1984 – Two Tribes, Frankie Goes to Hollywood

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What is the point of Unfair Dismissal?

Posted on November 7, 2017 by Darren Newman

On Monday I read a story that utterly depressed me. The BBC reported the case of Rachel Burns who was dismissed by Surrey County Council from her job in a care home for posting pictures on Facebook that included a vulnerable resident. This is not one of those posts where I pull apart the media reporting. It seems to me that the BBC account is pretty accurate – and is confirmed by the Tribunal decision.

When you read what Ms Burns did wrong I very much doubt that your reaction will be ‘well thank goodness that person can no longer work with vulnerable adults’. She shared a photo on Facebook of a happy occasion – a musical evening that she led at the care home where she worked.  No-one was harmed. No resident objected. In fact, by the time of the Tribunal hearing the resident in question had made it clear that he was quite happy for the picture to appear.

But Ms Burns had clearly acted in breach of the social media policy which did not allow the posting of text, video or photos that breached the confidentiality of residents. She accepted that fact and took the post down immediately. She was then suspended (why?) and taken through the disciplinary process. The employer concluded that such a breach of the policy would normally lead to dismissal but that they would on this occasion offer her redeployment to a much more junior post – at a much lower rate of pay. She took too long to make up her mind about that, however, and so she was dismissed with notice.

She had worked at this care home for more than 20 years and her career was over because she inadvisedly published pictures on Facebook of an event that showed residents of the care home enjoying a social event. Nobody thinks that she poses a danger to anyone. There is no reason to think that she will ever do this again. Nobody has actually suffered any harm or even anxiety except the employee herself. Why then must she lose her job? How can such a devastating – life ruining – penalty be appropriate or reasonable?

Now there are two sides to every story and the Council would no doubt argue about the fundamental importance of safeguarding vulnerable adults from breaches of their privacy or dignity. But what I find most enraging about this case is that in the whole of the ET judgment – it’s 18 pages long – you won’t find any discussion of that issue. The nearest you get is one line in paragraph 93 where the Tribunal says that proposing to demote her ‘was within the band of reasonable responses to the admitted misconduct’. There is no explanation of the basis of that finding and no discussion or consideration of whether the breach of policy was really so serious as to warrant dismissal.

Instead we get procedure; pages and pages of procedure. The Tribunal discusses the various hearings and adjournments and the conduct of the appeal hearing. It then concludes that on one very narrow issue the dismissal was unfair: the employer should have given her longer to think about accepting a more junior position.

The next step will be to decide remedy – and here Ms Burns is likely to be seriously disappointed. Instead of being compensated for everything she has lost in the past year and will continue to lose in the future, she is likely to be awarded only a token amount. There will be a deduction made for contributory fault – and since the Tribunal seems to think that demotion or dismissal was within the range of reasonable responses that is likely to be significant. Compensation will also reflect the Tribunal’s finding that there was ‘only a slim chance’ that she would’ve accepted the lower paid position.

Frankly, If I were the employer in this case I’d chalk it up as a technical defeat, but a practical win.  I might also regret the fact that a single and inadvertent breach of policy led to the loss of an experienced and valued employee. As it happens, however, the care home was already scheduled for closure by the time Ms Burns was dismissed and so her dismissal actually allowed the employer to save on its redundancy costs (although I should carefully record that the Tribunal rejected any suggestion that this fact lay behind the employer’s decision to take such a strict view of the employee’s misconduct).

Now of course Ms Burns could appeal against a major reduction in compensation – and I would think that her chances would be good. The range of reasonable responses test certainly skews unfair dismissal law in favour of employers – but it does not mean that Tribunals can ignore questions of substantive fairness altogether. Employers cannot simply rely on the fact that there has been a technical breach of a policy to justify dismissal. For a recent example see Arnold Clark Automobiles Ltd v Spoor in which the EAT upheld a finding of unfair dismissal even though the employee was guilty of gross misconduct. That fact did not mean that the employer was entitled to disregard the employee’s long service and the surrounding circumstances of the case.

But what would winning the appeal actually achieve? The most likely outcome would be that the case would be sent back for re-hearing. Ms Burns would have to go through the whole process again – and still would not be guaranteed a substantive win. By then it would be over two years since her dismissal. Frankly I’d probably advise her not to bother – it just isn’t worth the extra grief.

Even accepting that this decision is flawed, it strikes me as a good example of what is wrong with unfair dismissal law. The law has become fixated with policies and procedures to the point where it is essentially a bureaucratic right – looking at how the employer has gone about the process rather than asking fundamentally whether it was right for the employee to be dismissed. This is bad for employers and employees. It is bad for employers because it can tie them up in red tape even where the case for dismissing an employee is compelling – and it is bad for employees because an employer who drafts clear policies and is good at following procedures has a pretty free hand in deciding whether or not to dismiss someone. Even winning the case is often a hollow victory because the remedies are so limited.

I’m increasingly of the view that the right not to be unfairly dismissed is not really worth the volumes of case law and legal commentary devoted to it. If I had my way I’d scrap the whole thing and start again.

 

 

 

Posted in Unfair Dismissal | Tagged , , | 6 Comments