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By Philip - Friday, July 4th, 2008
As football fans know the two best football players at the moment are considered to be Lionel Messi of Barcelona and Christian Ronaldo of Man Utd.
This time of year transfer speculation is rife. Which player is moving to which club, who’s in, who’s out, what’s the weekly wage etc.
Today we can exclusively reveal that Arsenal sign Messi
….. Well I found it funny anyway, a surreal end to a surreal week.
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By Philip - Friday, June 27th, 2008
……….Or so I learnt when I was growing up. The most controversial measure in the Equality Bill is the proposal to make a limited form of positive discrimination lawful.
The proposal is to allow employers to discriminate in favour of under represented groups where two candidates for selection or promotion are equally well qualified.
Aside from the philisophical point about using discrimination to combat discrimination, employment lawyers can foresee that this proposal will lead to more disputes not fewer. Here are a few problems:
1.Where two female candidates apply for a promotion, one heterosexual one lesbian- will it be permissible to discriminate in favour of the lesbian if the fact or perception is that lesbians are under represented at that particular level? If so will employees game the system by lying about their sexual orientation to get on?
2. If one black and one white employee are tied in a redundancy selection exercise will it be permissible to use race as a tie breaker?
3. If two pupils, one muslim, one christian, are tied in a school entrance exam, say an 11+, will it be permissible for race to be a tie breaker on the basis of under representation?
As you can see this has the potential of opening a huge can of worms and be detrimental to race relations. Surely it’s better to insist that employers recruit, promote and retain on merit regardless of their employees’ gender, orientation or race? Isn’t that the ideal the government should be aspiring to? When will this social engineering end?
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By Philip - Friday, June 20th, 2008
Consultation has now opened on the proposed new right for employees to request time off for training and for such requests to be seriously considered by employers. The proposal suggests that the right would mirror the right to flexible working currently in existence.
The Government is inviting your views during the consultation period which will run until September 2008. No doubt there is a wide ranging spectrum of views ranging from:
The legal profession requires each Solicitor to have a mandatory 16 hours of CPD (continuing professional development) each year.The profession is also opening a skills academy to systemise and identify the skills required to practice succesfully.
Whatever way you look skills are moving up the agenda.
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By Philip - Monday, June 2nd, 2008
If you telephone in to PJH Law you will hear some new voices. Two new solicitors have recently joined, Emma and Jenny. To enable you to put a face to a name here’s a photo of Jenny and Emma, Jenny being on the right and Emma on the left. Emma has joined us from a City firm and Jenny has moved from a Manchester firm, having recently qualified. Both have experience of employment law, with Emma also having extensive experience of business immigration.
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By Philip - Tuesday, April 15th, 2008
As Sarah’s post yesterday highlighted, gone are the days when a claimant can flout a Tribunal’s order with impunity. Tribunals seem to be flexing their muscles in respect of striking out claims not only because they are weak but also because an order has not been complied with.
Another running theme in Tribunal procedure is the greater use of costs orders. These used to be as common as teeth on a hen, you were more likely to find Elvis in the local chip shop than have a costs order made.
Times are changing and costs orders are more frequently being made. Last week we reported a £60k costs order, this week the EAT have heard a case involving a 10k costs order against a Claimant who had not impressed the Tribunal with the accuracy and honesty of his evidence. The EAT did not interfere with the order.
If the doom mongers are right and recession is just round the corner, those advising employees will be advising against a backdrop of Tribunals being more willing to make costs orders. Those ancient enough to remember the last recession will remember that mass redundancies were the norm. ITV news even had a weekly slot at the end of the news showing how many mass redundancies had been declared that week.
With mass redundancies came multiple Tribunal claims from those dismissed as redundant. Some of the leading case law in redundancy was made during recession - BAE v Green being a good example where the Court of Appeal gave clear guidance of the Tribunal’s role in judging (or not judging) employer’s selection criteria and their application.
Even in 1995 most of my employer case load was made up of Tribunal claims from redundant employees. The question is now that the law on selection criteria and their application is more settled, will employees in mass redundancy situation still bring claims if they know that a misconceived claim could swallow up some or all of their redundancy payment in a costs order?
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By Philip - Thursday, March 20th, 2008
This case is for you if you are interested in the intricacies of how the Sex Discrimination Act works and its interplay with the Equal Pay Act.
Involving the long running (and local authority budget sapping) equal pay cases and the indefatigable Stefan Cross , the point in question was whether a section 77 claim under the Sex Discrimination Act could run in parallel with an Equal Pay claim in Tribunal.
For historians of the discrimination legislation, the judgement gives a concise potted history of the relevant law and considers the impact of the 1986 Sex Discrimination Act.
In essence section 77 allows a party to a contract to have it declared void if one of its terms is discriminatory. The contract in question was a collective agreement and the Trade Unions were a party to the litigation.
The EAT allowed the Tribunal to run the Sex Discrimination claim to run in parallel with the Equal Pay claim.
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By Philip - Monday, March 17th, 2008
The Deputy Prime Minister has announced that the Government is considering a law to allow race and/or gender to be a factor in employers’ decision making if two candidates are equally qualified. Under the proposal the employer can lawfully choose a woman or the candidate from an ethnic minority if they are equally qualified over the white or male candidate.
Besides the issue as to whether this proposal will assist or harm race relations, there is also the very real, practical issue of the circumstances in which two candidates will be equally qualified.
Many of our larger, employer clients have sophisticated recruitment mechanisms involving the use of assessment centres. How often are candidates tied on the same score? At PJH law we recruit using a scoring system and we have yet to have a tie. It may well be that in practice this permissable tie breaker may not be used, given the infrequency of the tied score.
It is also slightly irksome that the government is proposing this. One of the most insidious ways that discrimination (on grounds of sex or race) manifests itself is appointment by cronyism.
Given that the PM is not limited to choosing mps when drawing up a cabinet (he can choose people who are not mps), it is surprising how many cabinet members are related: Ed Balls and Yvette Cooper, Ed and David Milliband, Wendy and David Alexander for a start. This proposal may be another example of do as I say not as I do. Employers may be more positive about this proposal if the Government led by example, starting with the cabinet.
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By Philip - Tuesday, February 26th, 2008
Given the spate of evil and unsavoury characters that have been sent to prison in the last week, the EAT have had to wrestle with the issue as to whether a prisoner on day release from prison to do work at a local employer under a scheme designed to re-habilitate and re-settle offenders accrues employment rights?
The answer was that no employment rights accrue during day release, so the prisoner in that case could not claim unfair dismissal. Even though he was taken on by the employer after his release, the service when he was on a day release did not count as continuous service therefore he could not claim as he did not have one year’s qualifying service.
Despite getting a chance after being released, he was dismissed for unreliability which is rather disheartening as unemployment will no doubt increase the chances of his recidivism.
As two of the three monsters above have been sentenced to whole of life sentences, the chances of any of them ever getting anywhere near another employer is remote, other than shovelling coal in the fires of hell.
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By Philip - Tuesday, February 19th, 2008
Nothing like a controversial headline to stir debate.
There was an investigation into Massey Ferguson in Coventry in 1982 by the CRE, which found having informal recruitment mechanisms, via word of mouth, led to a homogenous workforce.Employees told their friends and family of vacancies. They then wrote in and got the job. As friends and family were usually of the same race, the workforce at Massey Ferguson replicated itself. Because of the informal recruitment processes the workforce was overwhelmingly white, whilst Coventry was and still is an ethnically mixed area. The record label Two Tone came out of Coventry, the workforce at Massey Ferguson could not be described as Two Tone, more like Vanilla Ice
The informal recruitment mechanism was found to be indirectly racially discriminatory.
Back to the point. If MPs are recruiting friends and family by informal recruitment mechanisms might they be inadvertently replicating the ethnic make up of the Commons? Could this be contrary to the Race Relations Act? Given that this is public money involved and some of this taxing work could be fitted around a full time degree course (and rumour has it a very active social life) , why can’t mps when they come to recruit office staff at least try to operate by a Code of Practice on Recruitment?
Guidance for how employers should recruit is being forever issued by various statutory bodies. Surely MPs don’t want to be accused of “Do as I say not do as I do!” do they?
I appreciate that the argument is more nuanced than the one advanced as there can be sound reasons for some philandering mps to have their spouse as secretary so that a watchful eye can be kept.
That pragmatic point aside, given that it is public money shouldn’t there be a transparent appointment mechanism?
Makes you think, dunnit?
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By Philip - Monday, February 18th, 2008
Yes I know it’s not a piece of legislation any of our readers (and indeed the writer) will be intimate with, even at a distance.
It was considered at the case reported here
The facts of the case are that a charity concerned with the blind in Blackpool and Fylde unfairly dismissed and discriminated on grounds of disability a blind employee.
You are forgiven if, in reading the last paragraph, you have had to suppress a wry grin at the mention of a charity looking after disabled people discriminating against a disabled employee.
The upshot was that the employee was found to be 40% to blame for his dismissal and his unfair dismissal compensation was reduced accordingly.His compensation overall , including the discrimination award, was £87k.
The Tribunal at first instance made no deduction of compensation for disability discrimination under the above act. The EAT lays open the possibility that awards for discrimination in Tribunals could have percentage deductions if there is contributory negligence. As the argument was not raised at the first tribunal the EAT dismissed the appeal as a new point, which should have been raised at the remedy hearing.
Those of you facing a disability case should ensure that your representatives go armed with the above Act, as the discrimination legislation talks about making an award on the basis of the tort of discrimination and the EAT observed that there is some logic in reading the discrimination legislation in line with the above Act, although it has taken some 30 years to be raised.
The logic goes negligence is a tort, as is discrimination, if an employee has contributed by his conduct to the discrimination then a deduction should be made for contributory negligence.
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