Are shops breaching discrimination law by selling ‘lads mags’?

In a word – ‘no’.

Oops sorry, I need to hedge a bit. In two words –  ’probably not’

The issue arises because of a letter sent to the Guardian by a number of prominent human rights and equality lawyers in support of the campaign against the so-called ‘lads mag’. This has of course been picked up and widely reported. It’s an ideal slow news day story. Nothing has actually happened as such. No-one is claiming discrimination (yet) and a court has not been asked to rule on the point. However a group of lawyers writing a letter is enough of an excuse to have a heated debate about political correctness, so off we go. It seems, for example that Toby Young disagrees with the campaign. Who would have guessed?

I cannot stress enough that I take no position on the campaign behind the letter. Arguments on both sides I’m sure, but I’m keen to stay well clear of that one.

My interest is in the legal proposition that requiring employees to handle these products may be unlawful because it amounts to harassment – either of employees or of the customers who come into the shop. 

We should first of all reflect on what a bold proposition that is. The campaign is suggesting that the act of selling these legal products in a retail environment may in itself be unlawful. That would be a surprising position for the law to take don’t you think? It’s the sort of conclusion that I think the courts would only reach if they felt the law absolutely compelled them to do so. 

Defining Harassment

Harassment is defined in S.26 of the Equality Act 2010 as ‘unwanted conduct related to a protected characteristic’ which has the purpose or effect of violating an individual’s dignity or ‘creating an intimidating, hostile, degrading, humiliating or offensive environment’ for that individual.

Let’s accept for the purpose of this argument that working in a place where these magazines are displayed does indeed create the sort of environment that S.26 covers. We would still have to show that employees were subjected to unwanted conduct which was related to their sex. 

Suppose the manager of a shop instructs a female member of staff to fill the shelves with copies of a magazine with an objectionable cover. The member of staff may not want to be given that instruction and so the conduct might be said to be ‘unwanted’ but on the other hand it is well within the scope of the contract. Can an instruction to perform a duty mandated by the contract you have entered into be ‘unwanted’ in the sense meant by S.26?  And, in any event, can we say that the instruction is in itself related to sex? Presumably the manager would give the same instruction to any member of staff regardless of gender. Could the nature of the material be enough to make the instruction ‘related to’ sex?

Even if we accept this argument, it seems unlikely that employees in newsagents would be at the front of the Employment Tribunal queue. What about the bar staff in a lap-dancing club or employees in a sex shop? Surely there are thousands of employees who are subjected to images and attitudes far worse than those displayed on the front of these magazines?  Why focus on ‘mainstream’ retail? What difference does being ‘mainstream’ make to somebody’s rights at work?

Ultimately, the question is not what the lawyers writing this letter think of these arguments but what the judges of the ET, EAT, Court of Appeal and – ultimately – the Supreme Court think (if only Lord Sumption were on Twitter, we could ask him!)

On balance I would be astounded if the courts agreed that an employer was harassing its staff or customers purely by putting these products on sale. 

More harm than good

As an academic exercise, it is possible to formulate all sorts of potential discrimination claims based on common employment practices. But these hypothetical cases can only become real if an actual employee brings a claim. The case is then decided not on some abstract basis but with the facts of a particular case in mind.

Do we have any evidence of employees actually feeling upset or humiliated? If an employee gets dismissed for refusing to handle issues of Zoo magazine then I’ll happily cheer her case on – and I’m sure that one of the letter’s signatories would be delighted to represent her on a pro-bono basis. But until the case actually arises I don’t think it’s helpful to frame an abstract argument.

We need discrimination law to protect real people from serious ill-treatment. The problem with arguments such as those put forward in this letter is that they feed into the ‘political correctness gone mad’ and ‘you can’t do anything these days’ narrative that is used to undermine support for discrimination law generally.  I don’t think it’s a good idea to add fuel to that fire.  

I take no position on just how objectionable these magazines are, I am completely neutral on the campaign against them. What I do object to, however, is roping in a spurious (or at least, highly speculative) discrimination argument to give weight to that campaign on a slow news day. I think it does more harm than good.

Why the Apprentice Lost

The decision in English v Amshold Group Ltd is out and you can read the whole thing here:

This is the case in which former Apprentice winner Stella English sued for constructive dismissal. I blogged here how it was difficult to understand from the press reports just what the case was actually about. Now that we have the actual decision, things have become much clearer.

What Happened

First, the facts. Ms English was employed by Viglen Ltd, one of the companies within Lord Sugar’s Amshold Group Ltd (AG). She actually started work at Viglen before she won the Apprentice as there was a gap between the end of filming and the actual decision being made. In the meantime both finalists were employed in different AG Ltd companies on  a temporary basis.

This means that although she left before the end of her 12 month contract, she did have a year’s service if you include the months she spent working for Viglen before winning the competition  I’m glad that’s sorted out, because that point had been bugging me.

When she was announced as the winner, she was given a one-year contract with a salary of £100K and she continued to work with Viglen. The contract started in January 2011.

She submitted a resignation in May 2011 without having any other job to go to. Lord Sugar arranged for her to work at YouView for the remainder of her contract. Importantly, she was employed by AG Ltd and was seconded to YouView. Although Alan Sugar was at the time a director, it was not a company that he owned.  However, because Ms English was seconded, it is clear that her continuity of service was maintained because AG Ltd and Viglen are ‘associated employers’. She was not actually employed by YouView (that had been bugging me too).

Clearly she enjoyed the work at YouView and wanted to stay, but YouView made it clear that beyond the duration of her secondment there was no job available – certainly not at a salary level of £100k – although there could be opportunities for contract work. It appears clear that Lord Sugar was not in a position to offer her any such work – that was a matter for the management of YouView.

In September 2011 Lord Sugar informed Ms English that her contract would not be renewed after December 2011. This is surely not surprising. Ms English had left her job in Viglen and it was clear that she did not want to return. AG Ltd could not employ her indefinitely to work for YouView as it gained no benefit from the arrangement. In AG’s view it had already gone the extra mile in funding a six month secondment for Ms English for the remainder of her one-year contract.

Ms English then submitted a resignation with immediate effect in October 2011 and claimed constructive dismissal.

The Claim

Interestingly, there was initially a whistleblowing claim submitted but that was withdrawn – although only at the end of the hearing. There is no indication what alleged public interest disclosure Ms English had made.

She claimed that she had resigned in response to a breach of the implied term of trust and confidence. Her main point was that in a meeting with Lord Sugar on on 28 September 2011, when he told her that her contract would not be renewed, he said that he had only put her into YouView for the integrity of the show and used the phrase ‘I don’t give a shit’ (although precisely what it was that he did not give a shit about was a matter of dispute).

If that wasn’t enough to  to amount to a fundamental breach (and it does sound a bit weak doesn’t it?) she also argued that this conduct was the last straw and relied on a series of statements made by senior management at Viglen and Lord Sugar himself going back to the beginning of her employment  - and dating to before she won the competition and entered into the one-year fixed term contract. It isn’t worth going through these allegations in detail, but essentially she was alleging that the job was a sham, that she was treated with a lack of respect, given no proper work to do, and undermined from the outset.

Why she lost

The Tribunal was faced with clear conflicts of evidence about what was said by whom over the course of her employment. Where there was a conflict they essentially believed the evidence of the employers including Lord Sugar and did not believe Ms English. She therefore lost the case because, she had not shown any conduct which amounted to a fundamental breach of contract.

Specifically they found that the job at Viglen was a meaningful job with real responsibilities and duties that were appropriate to her skills and which had real opportunity for growth. They rejected the allegation that Lord Sugar summarised the feedback he had received about her as ‘nice girl, don’t do a lot’.

Not being present for the evidence being heard, I have no idea whether the decision is the right one or not but it seems carefully reasoned enough. It was a clear win for Lord Sugar and his companies, who really don’t come in for any criticism from the Tribunal at all.

Indeed the Tribunal is quite harsh about the decision to bring the case. At the end of the judgement they say this:

154. This was a claim which should never have been brought

155. The Tribunal considers that the Claimant who had sought legal advice prior to putting in her ET1 was ill-advised to bring a claim and or continue it

Of course we don’t know what the legal advice to Ms English actually was given, but I would have said that even accepting that her version of events was true her case had some serious problems:

• Even if her version of what Lord Sugar said to her just before she resigned was correct, it is not clear that that amounted to a fundamental breach of contract. If she had been give work at YouView just to save embarrassment  why would that matter? She accepted that the work there was meaningful and appropriate. 
• Much of the evidence concerned comments allegedly made from the outset of her employment. However at that stage she was employed on a temporary contract and she entered into a new contract in January 2011. How can comments made under a previous contract accumulate to be a fundamental breach of the new contract? 
• It is clear that she made no complaint about her treatment at Viglen directly to Lord Sugar – although she was in frequent contact with him and had his direct line.
• She did not indicate that she had any cause for complaint when she resigned from Viglen.
• She resigned from a job where she was essentially on secondment for a fixed period. Given that her employer gained no financial benefit from her work, her dismissal through the expiry of the contract was surely inevitable. What losses could she actually establish?

Lord Sugar is quoted today as saying that this case shows that employers should stand up to claims such as this. I agree. It is often assumed that an employer will simply cave in and settle a case that can lead to adverse publicity. Many employers and employees frankly overestimate the publicity potential that the case may have – although this case is clearly exceptional. Even where publicity is likely however, some cases need to be fought rather than settled.

It is worth bearing this simple fact in mind when we look at reforming employment law. The current debate is expressed in terms of dispute resolution- doing a deal. That’s all very well but we should remember that the Tribunal system is not just about facilitating a deal, it is about doing justice between the parties – and employers are just as entitled to justice as employees.

An Insult to Christians? The Mail’s Insult to Our Intelligence

This morning’s front page of the Daily Mail is the sort of thing that keeps me up at night. There is a particular kind of deliberate stupidity – a boneheaded, almost joyous, refusal to understand or engage with an argument or a set of facts – that has me spitting feathers. It is the kind of stupidity that seems to reach its purest form when the Daily Mail runs a story about the Equality Commission.

The latest example is the Mail’s fury at guidance issued by the Commission on ‘Religion or Belief in the Workplace’. I know I shouldn’t do this but I can’t stop myself. Let’s look at what the article says, and what’s wrong with it.  

The guidance the Mail is complaining about has been issued by the Commission to explain some of the potential implications of the ruling in Eweida and others v United Kingdom. I’ve written quite extensively on that in the past so I won’t summarise the case here.

The Daily Mail sums up the purpose of the guidance like this:

It has been issued in the wake of the landmark European Court of Human Rights ruling that Christians may wear a cross at work

Up to a point, Lord Copper. The ECHR did not rule that Christians ‘may wear a cross at work’. Two of the cases before it concerned the wearing of a cross or crucifix, one succeeded and the other failed. However, the point the Mail is making is this:

But rather than focusing on Christian rights in the workplace – which it insists are still strictly limited – the controversial quango suggests employers should give equal respect to fringe and non-religious groups.

There is a lot wrong with that paragraph. However the central point to understand is this: just because the Eweida case was brought by Christians, that does not mean that the Court’s ruling only applies to Christians. The case was brought under Article 9 of the Convention which protects the freedom of religion and belief. It was always absolutely inevitable that whatever the Court said in Eweida would apply equally to any and all beliefs protected by Article 9. That’s how these things work.

So any guidance issued by the Equality Commission has to make it clear that the principles apply to a wide range of religious and non-religious beliefs, because that happens to be true. The Commission is not extending the law here, it is just explaining it.

Of course the Mail is not just complaining that the guidance covers other religions. It’s point is that the guidance is playing down the rights of the adherents to mainstream religions and emphasising the rights of ‘fringe and non-religious groups’.

The Mail says

This could include giving believers time off to go on pilgrimages, such as druids and pagans going to Stonehenge

This is the Mail’s conclusion, not a quote from the actual guidance. Stonehenge is not mentioned anywhere in the guidance document. Pilgrimages are mentioned, but not specifically in relation to druids, pagans or any other religion. The guidance simply – and correctly – states that some religious employees may request time off to go for a pilgrimage. I suspect that if any particular group was being thought of here it was Muslims performing the Hajj – so that should make the Mail feel better.

In fact the main body of the guidance is expressed in general terms not focussing on any one kind of belief. It does mention that groups such as druids pagans and atheists are protected by the law but it is difficult to see what the objection to that can be because its, well, true. It categorically does not suggest that they are entitled to more favourable treatment than other protected groups. 

Towards the end of the guidance, nine potential situations are discussed and these do use specific beliefs as an example. One of these involves a vegetarian. One involves someone with beliefs about the environment. One deals with a Jewish employee. There is also one case study dealing with a Sikh,  one concerning a Muslim and one concerning a Hindu. The remaining three scenarios concern Christians. In no way does this show an undue focus on fringe beliefs.  

Dealing with the vegetarian, the Mail summarises the guidance like this:

Vegetarian kitchen workers could refuse to do tasks that offend their beliefs, such handling meat [sic].

This is wrong. The example in the guidance is not concerned with ‘kitchen workers’, but with office workers who are asked to clean the office kitchen as part of their duties. The difference is crucial because it would be much harder to accommodate a vegetarian kitchen worker refusing to handle meat as part of his or her job and the guidance categorically does not suggest that  employers have to do that. 

The situation put forward in the guidance may seem odd but it is taken from the case of Chatwal v Wandsworth Borough Council - although that case (which I think is still ongoing) concerns a Sikh abstaining from touching meat rather than simply a highly motivated vegetarian.  

So the Mail overstates the extent to which the Commission argues for the protection of ‘fringe beliefs’. What about its handling of Christian belief?

The Mail says: 

But the 12-page EHRC document makes it clear that the rights of Christians in the workplace are strictly limited

It does no such thing. At no stage does the document make any statement – specific to Christianity – to the effect that rights are limited. It does of course make it clear that there are limits to the right of religious expression in the workplace - because there are. However the guidance does not suggest that the rights of Christians are more limited than the rights of others. 

In support of its statement the Daily Mail says of the guidance:

It gives the example of a religious magistrate asking to be excused from dealing with cases involving the upbringing of children by gay couples. The guidance suggests it would be reasonable to refuse the request because the rights of gay couples are more important.

What the guidance actually says about that scenario is this:

The employer considers this request, but decides to reject it and requires her to carry out her work duties on the basis that the belief is incompatible with upholding the dignity and fundamental rights of same-sex couples under its equal opportunities policy

This guidance is of course directly in line with the Court’s ruling in the case of Ladele (joined to the Eweida litigation). Given the scenario, there is really no other advice that the Commission could give. Nor is the scenario an unrealistic one. It is clearly inspired by the case of McClintock v Department of Constitutional Affairs where just such an objection was made, though no discrimination was found to have taken place.

The Mail makes no mention of the fact that the nine examples include two scenarios in which a Christian’s religious expression (a nurse praying for patients and a Christian wearing a cross) should be respected. Any claim that the guidance plays down the rights of Christians at the expense of any other group is simply wrong. Not just a bit harsh. Not ‘a bit of a stretch’. Wrong.

An insult to Christians?

Possibly my favourite passage in the article is this:

The guidance is likely to be seen as an insult by some Christians and other religious observers as it appears to put lifestyle choices like vegetarianism on a par with their deeply-held spiritual beliefs.

Do you see what they did there? There is no evidence that any Christians are actually offended or regard the guidance as an insult. And of course the guidance does not put ‘lifestyle choices’ on a par with deeply held beliefs. Not all vegetarians will base that choice on a deeply held belief – and if they don’t then they won’t be protected. But some will and they may be covered by Article 9. This is no big deal. Why is it on the front page of a national newspaper?

What we have here is another manufactured outrage story. There really is nothing of substance here at all. The Equality Commission has issued a guidance document which explains the impact of Eweida for UK employers and does so by using examples drawn from a wide range of beliefs protected by Article 9. There is nothing in the guidance that is genuinely controversial. Indeed my criticism of it would be that it is all a bit bland and obvious. I don’t think it tells us anything new – but then it isn’t really supposed to.

The author of the article cannot possibly think he has presented readers with a fair and balanced summary of what the guidance says. On the contrary he has clearly distorted – with something like wild abandon – what is essentially a prosaic and not terribly important guidance document. The stupidity of the article is surely deliberate and calculated – and all the more depressing for that.

The Apprentice and the Employment Tribunal

I quite enjoy watching The Apprentice, but I find it best to think of it as a work of fiction put together by editing footage of actual events. Clearly situations are engineered by producers in order to generate conflict and give contestants an opportunity to appear really foolish for our entertainment. Characters are created and plot lines engineered through careful editing and commentary. What we see on the screen – obviously – is far from being the whole story.

In recent series the winner acquires Lord Sugar as a business partner with up to £250,000 to invest in his or her business idea. In the original format, however, the prize was a one-year contract working for one of Lord Sugar’s companies at a salary of £100K. One thing that always puzzled me about this was that nobody seemed interested in what the job actually was.  Even when it got to the interview stage, we didn’t see anybody say ‘this job I’m applying for – what is it exactly?’. Behind the scenes or off camera, of course, they may have talked of little else, but the storytellers putting the programme together seemed to think that the salary was all that mattered.

So I would have thought that by series six, one thing would have become clear to all of the contestants: it isn’t about the job! Participating in The Apprentice is an opportunity to be on telly and become a bit famous. If you want to get a really good job paying £100K a year then frankly there are easier and more reliable ways of doing that than being forced through the humiliations that being a contestant on The Apprentice involves. And you might even get to have some sort of say in what your job actually is.

So when Stella English is reported as complaining that the job itself turned out not to be a proper job at all, I do wonder what she could have been expecting. No doubt it was upsetting for her to be – on her account – an overpaid lackey. But then I always say that if you’re going to be lackey, it’s best to be an overpaid one.

The press reports of her Employment Tribunal hearing are presented as a form of entertainment. They tell a story of disillusionment, anger and betrayal. But they don’t actually tell us what the case is about or what is really happening. Like an episode of The Apprentice itself, the story we are given has been carefully edited to give it some narrative drive and cut out the boring bits.

Naturally, it’s the boring bits that I would be most interested in – like for instance, who is she actually suing? It seems that she worked at Viglen between September 2010 and May 2011 when she resigned and was given a new role at Youview TV Ltd which she left in September 2011. Is she suing Viglen or Youview? The press do all seem to agree that she is suing for constructive dismissal, though whether the claim relates to her resignation from Viglen or from YouView is not entirely clear. I’m also not sure where she gets her one year’s service from. For some reason the press reports don’t mention whether  Viglen and YouView are associated employers for the purposes of S.218(6) Employment Rights act 1996. 

It seems as though the evidence has focussed largely on her job at Viglen which was apparently an unhappy experience for her.  But it isn’t clear what she relies on as the fundamental breach of contract that led to her resignation. Was it the conversation with Alan Sugar where he told her than her contract (with Youview) wasn’t going to be renewed? Or was it the meeting where the chief executive of Viglen allegedly said of her:  ’nice girl, don’t do a lot’? Either way there is something very odd about this claim. To get more than token damages claimants have to show that they have lost something as a result of being constructively dismissed. Given that, it does seem to be an odd tactic to claim that the whole job was a sham and that there was nothing to do. If that is right, then it certainly wouldn’t have lasted beyond the first year anyway – so what has she actually lost? If it is the loss of the job at Youview that she is complaining about then why all the evidence about how awful her job with Viglen was? Frankly, I’m confused.

Lord Sugar has accused Ms English of bringing a vexatious claim in the belief that he would settle rather than risk the publicity the case would attract. No-one whose knowledge of the case is based on the press reports is in any position to have an opinion about that – we’ll have to wait and see what the Tribunal’s findings actually are. But just as The Apprentice is a piece of entertainment that doesn’t tell us anything about how the real world of business operates, so this case tells us very little about employment law or the sort of cases that Employment Tribunals deal with. 

Still, its fun to watch.

Dealing with allegations of harassment

Normally I blog about employment law stories in the news, but this post is an exception. For no particular reason I thought I’d share a common question I get when running a course on discrimination and harassment together with the sort of answer I usually give.

Q: What do we do if we receive anonymous and non-specific allegations that a senior manager has been behaving inappropriately towards members of staff?

 A: Well, that’s a good question (I always say this in training courses, they’re paying after all).

It is of course difficult to deal fairly with allegations that are anonymous. But what do we mean by anonymous here? It is one thing if someone has written an anonymous note and left it on your desk, but there is much more you can do if someone makes an allegation and simply tells you that he or she wants their name kept out of it.

In that situation the first step is to gather as much information as you can from the complainant. You need specifics – or at least as much specific information as you can get. Complaints are often very general at this stage, but that is no excuse for ignoring them. You need to dig a bit deeper to find out exactly what is being alleged. You need to then assess the seriousness of the allegation. Are we talking about misjudged banter or serious misconduct? Are there likely to be other people who have experienced the same sort of conduct ?

At this point you may need to discuss whether the individual wants to raise a formal complaint. However, what you do with the information is not entirely up to them. If you have been told that an employee is committing serious misconduct, then whether you do anything about that is not up to the person who told you. Of course you can preserve the anonymity of the complainant, but you also have a duty to other employees. Suppose this complaint is just the tip of the iceberg? If you fail to investigate properly then you are essentially enabling further harassment to take place and quite apart from how awful that will be for the victims, it could also leave you legally liable.

The alleged perpetrator will need to be told of the allegation – though not necessarily given the identity of the accuser. It is important not to lose sight of the fact that they are entitled to be treated fairly and put their side of the case. However, they need to understand that allegations such as this will be treated seriously and thoroughly investigated. Obviously the more specific the allegations the better. Where the allegations are kept anonymous then you need to remember that the individual accused is at a disadvantage. You need to probe carefully for any corroborating details, o any factors which might indicate that the accusations are untrue.

The allegations may, of course, be flatly denied. Denials take many forms. There is the ‘it wasn’t like that, it was just a joke’ denial and there is the ‘that never happened, it’s a fabrication’ denial and there is every shade of meaning in-between. At this stage the decision you need to make is whether you accept the denial and take no further action.

This is a big step. If you just let the matter rest here then the danger is that you will eventually have to deal with much more serious allegations involving many other people  -and the fact that you have done nothing about previous allegations could make things even worse . Before letting the matter rest you should explore all other avenues of investigation and make a very careful assessment. If the allegations strike you as credible – and that’s an important judgement that you have to make (and perhaps later be accountable for) – then you need to carry out a full investigation speaking to colleagues who may have witnessed any of the alleged or similar behaviour.

In other words, you need to either dismiss the allegations as false or carry out as full an investigation as you can and produce a report which may then lead to disciplinary action, depending on the findings you have made. One way or another, you have to decide whether these allegations are true or not and act accordingly. Do not be tempted to just shrug your shoulders and say ‘well its one person’s word against another’ and leave it be.

 That’s the sort of mistake that can really come back to haunt you later.

Whistleblowing and ‘gagging clauses’

Last week, the legal protection given to whistleblowers came under the spotlight with the case of Gary Walker, a former Chief Executive of United Lincolnshire Hospitals Trust. He claims that he was forced out of his job because of his concerns about patient safety. That is denied of course, and it appears that after his dismissal (ostensibly at least for swearing at work) he settled for a sum reported as being £500,000.

I’m not sure if that is an accurate figure. As with most compromise agreements, there was a confidentiality clause which would have prevented either side from disclosing the amount agreed. I have direct experience of the press just making up a figure in these circumstances, safe in the knowledge that neither side can contradict it. However let’s assume for now that the the award was for £500K or something like it.

Last week Mr Walker broke his silence and spoke up about the bad practice that he says he observed. It seems that this put him in breach of the confidentiality clause in his compromise agreement (or gagging clause as everyone seems to insist on calling it) with the result that he received a rather stern letter from his former employer’s solicitors. The Daily Mail quotes him as saying:

It’s like Stalinist Russia – speak out and you’re crushed

Indeed. Stalin was well known for handing out six figure settlements to his harshest critics.

The Guardian reported the case of Delyth Jenkins who resigned following her treatment at work after she raised concerns about abuse at a day centre:

Jenkins said she “was totally unprepared for what would happen to me for simply telling the truth. I was entirely unprotected by the law.”

She resigned in 2010 and began a tribunal process. The council settled a day before the hearing, “which let them off the hook and left the truth untold”.

She added: “I am still distraught that the management structure which failed so miserably are still there, given a second chance. They have also been given anonymity in the ombudsman’s report, but if there is no accountability, nothing will change and this will happen again.”

That seems an odd way of looking at it to me. It takes two to settle a case. Who let them off the hook?

The same article reports the case of a nurse they call Pippa who was dismissed for shouting at a resident but who claimed that this was a response to her previous reporting of poor patient care and abuse:

Pippa appealed to the manager. An independent external consultant was bought in to hear Pippa’s appeal, and agreed with her regional Union organiser that she should get two months’ pay under a compromise agreement.

“It was a pathetic amount but it had never been about the money and by this point I was so traumatised, stressed and broke that I just wanted it all to be over.

“But along with the compromise agreement came a gagging clause, meaning I am not allowed to speak about this case. That makes me furious. Why shouldn’t the home stand up and be counted? If they’re allowed to stay unidentified, then perpetrators are allowed to continue working and flawed management structures remain in place – both of which have happened in my case.

Again, if it was ‘never about the money’ – why take the money and accept the confidentiality clause that goes with it?

Of course it is difficult, if you have been dismissed, to fight the case on to the bloody end just so you can avoid signing a compromise agreement that prevents you from repeating your allegations. But we should also remember that in these cases we are only hearing from one side. It is possible that the actual facts of each case are rather more nuanced than is being presented to us now. If, as an employer, you feel you are being wrongly maligned by a former employee, then surely you aren’t going to settle the case without an assurance that the employee will at least stop making (what you consider to be) unfounded allegations about you.

The main development last week was that the Health Secretary Jeremy Hunt was querying whether it was right to impose confidentiality clauses when whistleblowing cases are settled.

Those who follow #ukemplaw on Twitter (and you all should) would have seen mention from several Tweeters (@emmalgrossmith, and @mhrubenstein for example) of a provision which already seems to render any such agreements void. Take a look at  S.43J of the Employment Rights Act 1996:

(1)Any provision in an agreement to which this section applies is void in so far as it purports to preclude the worker from making a protected disclosure.

(2)This section applies to any agreement between a worker and his employer (whether a worker’s contract or not), including an agreement to refrain from instituting or continuing any proceedings under this Act or any proceedings for breach of contract.

That clearly says that a compromise agreement cannot prevent a worker from making protected disclosures. So how can the cases we have been discussing have included such clauses when the compromise agreement was reached?

The only wriggle room I can see is that the contractual clause referred to in this section must be between ‘a worker and his employer’. The compromise agreements in the press last week were made between former workers and their former employers.

Does that distinction matter? The Courts have been prepared to accept that a detriment inflicted on a former worker is covered by the Employment Rights Act and that this can extend to protected disclosures made after the employment has ended  (see the blogpost from Laurie Anstis here), but I haven’t found an authority directly on the scope of S.43J. The question must at least be open – unless someone out there can find a case I’ve missed.

Perhaps Gary Walker will prove to be the test case if Lincolnshire try to get their £500K back. In the meantime, it might not be a bad idea to clarify the provision. The Enterprise and Regulatory Reform Bill has its Report stage in the House of Lords next week and an amendment could easily be made to remove the ambiguity.  I noticed on Twitter this morning that @emmaharper had suggested just that to the BIS minister responsible, @joswinson.  Wouldn’t it be great if a Tweet led to a change in the law?

The change could come at a price though. If a compromise agreement does not stop a former employee from repeating allegations, then it will be a less attractive option for employers. They may be more inclined to fight the case and argue that dismissal had nothing to do with any disclosures the employee may have made. Six figure settlements will be even rarer than they are now but of course (as claimants always tell the press) ‘its not about the money’.

 

 

Eweida & Co: the Decision

Well the judgement is out and you can read it in full here. It’s actually quite readable as these things go.

We will be digesting the meaning and implications of the decision for some time to come. In the meantime, on a first reading, here is what I see as the main findings of the Court on the key issues before it. For the facts in each case, see my previous post

Manifestation

The Court rules that a manifestation of a belief must be ‘initimately’ linked to the religion or belief (para 82). This includes an act or worship or devotion, but is not limited to such acts. There must be a ‘sufficiently close and direct nexus’ between the act the and the belief, but the act need not be required by the belief.

On that basis the Court held that Eweida’s insistence on wearing the cross visibly was a manifestation of her religious belief (para 89) and was therefore protected by Article 9. The same was the case with Chaplin’s insistence on visibly wearing a crucifix (para 97). Ladele had not actually claimed a breach of Article 9 (her case is discussed below under Article 14) but McFarlane had relied on Article 9 and the Court held that his refusal to undertake to counsel gay couples was a manifestation of his religious beliefs and was therefore also protected under Article 9 (para 108).

Interference

The Court declined to hold that the fact that an employee can resign and go elsewhere meant that a condition imposed in employment could not be an interference in the right to manifest a belief (para 83). Rather, it took the view that the ability of the employee to resign was one factor to be taken into account when considering the overall question of proportionality.

The Court ruled that in Eweida’s case, the refusal of British Airways to allow Eweida to visibly wear the cross and stay in her post was an interference with her right to manifest her religious belief (para 91). The same was true of Chaplin (para 97). The issue was therefore whether domestic law provided them with adequate protection

In McFarlane’s case the Court seems to consider the issue of interference as being one and the same as the issue of justification but the clear implication was that his dismissal did amount to an interference.

Justification

The State enjoys a certain ‘margin of appreciation’ in deciding whether and to what extent an interference in a right is necessary. The Court’s task is to determine whether the measures taken at national level are justified in principle and proportionate (para 84).

In Eweida’s case the Court held that the law as interpreted by the domestic courts had failed to strike a fair balance (para 94).  On one side of the scales was Eweida’s right to manifest a religious belief; on the other side of the scales was British Airways’ right to project a certain corporate image. While BA’s aim was legitimate, the domestic courts had attributed too much weight to it. The cross was discreet and did not detract from a professional appearance. There was no evidence that other permitted religious symbols had any negative impact on BA’s brand or image, and the fact that the policy was subsequently changed showed that the requirement was no of crucial importance.

In Chaplin’s case, however, the Court felt that the reason for the interference in her right was ‘inherently of greater magnitude’ than in the case of Eweida (para 99). Health and safety was a field in which the domestic authorities had to be allowed a wide margin of appreciation. Hospital managers were better placed to make decisions about clinical safety than a court. On that basis the Court declined to find any violation of Article 9.

As for McFarlane, the Court held that it was relevant that he knew about the need to comply with an equality policy when he began work and said (para 109):

While the Court does not consider that an individual’s decision to enter into a contract of employment and to undertake responsibilities which he knows will have an impact on his freedom to manifest his religious belief is determinative of the question whether or not there been an interference with Article 9 rights, this is a matter to be weighed in the balance when assessing whether a fair balance was struck.

There was a wide margin of appreciation in deciding where to strike the balance between McFarlane’s rights and the need to protect the rights of others. On balance the Court held there had been no breach of Article 9.

Article 14

The Court stressed that Article 14 has no independent existence.  as it has effect solely in relation to the rights enjoyed under the Convention. However it is autonomous in the sense that it does not depend on an actual breach of a Convention right. It covered both treating people in he same situation differently, but also failing to treat people in different situations differently (para 87). Any differences in treatment had to be proportionate and the state enjoyed a margin of appreciation in determining when differences in treatment could be justified.

Alone of the four applicants, Ladele had framed her case entirely based on Article 14 rather than any breach of Article 9. The Court held that her case fell within the ambit of Article 9 so that Article 14 was applicable. The Court accepted that Islington’s designation of all registrars as civil partnership registrars had a particularly detrimental impact on her because of her religious beliefs. However Islington’s aim in doing so – the provision of a non-discriminatory service – was legitimate (para 105). Crucial in the question of proportionality was the fact that the policy aimed to protect the rights of others whose rights were also protected under the Convention. On balance the Court held that neither Islington nor the domestic courts had exceeded the margin of appreciation and Ladele’s claim under Article 14 failed (para 106).

Since there had been a violation of Article 9 in Eweida’s case the Court saw no reason to consider the impact of Article 14 (para 95). In Chaplin’s case the Court, having found justification under Article 9 held that the considerations relating to discrimination would be broadly the same, and therefore saw no reason to find any violation of Article 14. For McFarlane also the Court held that there had been no breach of Article 14

Result

Chaplin, Ladele and McFarlane all lost heir cases. Eweida won and was awarded her 2,000 Euro in compensation.

As to what all of this actually means? The lesson for employers, I think, is to just try to be reasonable and as long as you can explain why a particular policy is necessary, you’re probably fine. You should try to accommodate religious beliefs in the workplace – but we knew that already.

For lawyers, the case will be picked over for some time to come. In terms of employment law, I suspect that it may have quite an impact on how we look at indirect discrimination cases. Making a coherent whole out of Article 14 and the Equality Act 2010 may be quite a challenge, but now that we have a protected characteristic (religion or belief) that specifically engages a Convention right, the scope of Article 14 will have to be taken into account. The Court of Appeal in Eweida had held that there was no need for BA to justify its policy because Eweida had not shown that the policy caused a disadvantage to others besides herself. That view of indirect discrimination can certainly no longer stand in the context of religion or belief. Whether it can still apply in other protected characteristics is an issue the courts will have to grapple with at some point.