Junior Doctors and the Trade Union Bill

Barring a dramatic development (such as a  legal challenge), tomorrow’s strike of junior doctors is going to go ahead. In fact it cannot be postponed because eight weeks has now passed since the ballot was held and after that period is ‘ceases to be effective’ (see s.234 of the Trade Union and Labour Relations (Consolidation) Act if you’re keen enough). This means that if the strike tomorrow was called off, the BMA would have to hold a fresh ballot before reinstating the action.

Oddly, the provision which requires action to be taken with four weeks of the ballot (which can be extended to eight weeks with the agreement of the employer) is set to be replaced by the Trade Union Bill which comes before the House of Lords for its second reading today.

If the Trade Union Bill were  in force then the ballot would actually remain effective for four months rather than a maximum of eight weeks – but there would be one very major catch.

Under the current law, provided that some industrial action is taken within the first four weeks (or eight if the time limit is extended) then the union is free to continue calling industrial action for as long as the dispute remains. It is not unheard of for a strike mandate to remain valid for some years while the parties edge towards a settlement or lapse into a weary truce – and there is no need for the union to hold a fresh ballot if it wants to call more action. Currently we have a live ballot in relation to schools where the NUT ballot was held as far back as 2012. The Fire Brigades Union is also still in a dispute where the ballot was held in 2012 and the RMT has an ongoing dispute in relation to night working on the London Tube where the ballot was held in June last year.

The Conservative Party manifesto specifically addressed this issue. It said that a Conservative Government would:

ensure strikes cannot be called on the basis of ballots conducted years before

But in fact the Bill goes much further than that. Clause 8 says that:

Industrial action that is regarded as having the support of a ballot shall cease to be so regarded at the end of the period of four months beginning with the date of the ballot.

What this means is that once voting in the ballot has closed (that is ‘the date of the ballot’ under s.246) the union has just four months to take its industrial action and must hold a fresh ballot for any action taking place after that period. This time limit includes the time needed to verify the results of the ballot, communicate that result to the employer, give 14 days notice of the action and carry out any further negotiations with the employer aimed at resolving the dispute. It is not possible to extend the period for any reason. Once the four months are up then no further action can be taken without a fresh ballot.

In an article for XpertHR last year I argued that this new provision was bad for industrial relations, would undermine attempts to settle disputes and lead to unions taking more action than they otherwise would have done. I still think that. I don’t think that there is any need for the Trade Union Bill at all, but it has now been passed by the House of Commons and since it is implementing a manifesto commitment, the Salisbury Convention dictates that the Lords cannot oppose it. There won’t even be a vote after today’s second reading debate.

Amendments however, are a different matter – especially if they would bring the Bill more closely in line with the Government’s manifesto. So just in case there are any Peers of the Realm reading this (you never know) can I suggest an amendment that would go a long way to to avoiding that harm that this provision might otherwise do?

In Clause 8, line 14: replace ‘four months’  with ‘twelve months’

That would stop ballots running on for ‘years’ just as the Conservative manifesto promises, but would at least allow a reasonable period of time for the dispute to play out without forcing the union to take industrial action in a single burst of disruption. If that isn’t accepted then at the very least let’s allow the parties to agree an extension of the original four months to allow talks to take place. I’ll even suggest some drafting:

In Clause 8, line 14: after four months insert ‘or such longer duration not exceeding 12 months as is agreed between the union and the members’ employer’

Surely it makes sense that if the parties want to continue talking, the union should be able, without prejudicing its own position, to suspend its industrial action in the hope that a settlement can be reached?

The Trade Union Bill is a bad Bill but there is no point in just whinging about it. The House of Lords cannot stop it, but they can make it better. I’m happy to help!

PS It’s worth pointing out that the ‘4 month rule’ introduced by the Bill will not apply to ballots that have already opened by the time the Bill becomes law – so action by junior doctors, teachers, firefighters and others will be able to continue on the basis of their original ballot.  

Posted in Industrial action, Trade Union Bill | Tagged , , , , , , | 1 Comment

USA v Nolan: Why America must be kicking itself


Dozens of generals and CIA types sit around a huge table. Uniformed flunkies are busying themselves in the background, carrying messages, whispering in the ears of the great men who have gathered to meet the president. Around them huge screens glow with maps showing the positions of warships; the potential trajectories of missiles. There is an air of urgent and important business.

They all rise when the President arrives and when everyone has settled he gets straight down to business. 

Dr StrangelovePRESIDENT: Gentlemen, we all know that the world has changed. We need to focus our resources on the Far East and scale back our commitments in Western Europe. For instance we seem to be running a ‘watercraft repair centre’ in a place called Hampshire over in England. I want to close that and instead open a new – yes General?

GENERAL: (his hand raised) Well Mr President, it’s an interesting idea, but we’d better not rush into this. We’ll need to hear what Mrs Nolan has to say first.

PRESIDENT: Forgive me, its hard to keep up with European politics, who is Mrs Nolan?

GENERAL: She works on the base sir. She’s a budget assistant.

PRESIDENT: You’ve lost me General

GENERAL: Well sir, she’s a civilian employee on the base and if we close it down she will likely lose her job. Under UK law we have to consult with the workforce representatives about ways in which we can avoid making people redundant.

PRESIDENT: Oh well fair enough. I wouldn’t want to make a decision about the geopolitical distribution of American military resources without hearing what a budget assistant in Hampshire thinks about it. She may have some useful suggestions about how I can deter China’s territorial encroachment of the South China Seas without starting a new cold war. Do you have her number?

You can’t sue us, we’re a country!

This is the scene I like to imagine whenever I think about the case of USA v Nolan which  has been running since November 2006 and is far from over, despite a ruling last week from the Supreme Court.

The case did indeed involve the closure of an American ‘Watercraft Repair Centre’ in Hythe in Hampshire with the loss of 200 civilian jobs. There was, however, no consultation about the closure of the base. Mrs Nolan, as an employee representative, has taken on the World’s greatest superpower in claiming that she should have been consulted under s.188 of the Trade Union and Labour Relations (Consolidation) Act 1992.

Mrs Nolan is my hero.

For me, the most delicious detail of the case is that everyone agrees that she should have fallen at the first hurdle. It is common ground that the USA could have claimed what is called ‘state immunity’. In other words, the USA could have said ‘you can’t sue us, we’re a country’ and the claim would have been dismissed.

However, America chose not to invoke state immunity, preferring to argue that the duty to consult did not apply to the strategic decision to close the base. At the time there was good reason to think that the law was indeed limited in this way and that the employer did not have consult about a closure decision per se, but rather about the redundancies that arose as a result. However the EAT then held in UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Division) that the duty was to consult about ways of avoiding the redundancy and if a closure decision made redundancies inevitable, then the employer had to consult about that decision. By that time the opportunity to claim state immunity had passed and America had a real fight on its hands.

Mrs Nolan won her case in 2008 and that decision was upheld by the EAT in 2009. In 2010 the Court of Appeal referred questions to the European Court of Justice about just when the duty to consult arose and in October 2012 (!) the Court decided that it was nothing to do with them because the Directive didn’t apply to public administrative bodies. That led to an argument before the Court of Appeal to the effect that the rules on redundancy consultation were not intended to go wider than the Directive and that they were therefore not applicable in this case. The Court of Appeal rejected that argument just last year, and their decision was upheld by the Supreme Court last week. The case has now been sent back to the Court of Appeal to determine the outstanding issue of just when in the employer’s decision making process the duty to consult arises. Mrs Nolan is no longer taking an active part in the proceedings, but she doesn’t need to. It now has a life of its own.

Somewhere buried in this case is an interesting and difficult point about exactly when the duty to consult arises. My own view is that the real question should be the quality of the consultation that takes place before the dismissal rather than the point at which the duty to consult arises – but that is a whole other article. In the meantime, pity the poor American official who decided not to claim state immunity on the assumption that the law didn’t apply to the closure anyway. ‘What’s the worst that could happen?’ he or she must have thought. Ten years on, and no end in sight, I think we can answer that question at least.

Posted in case law, EU law, Redundancy Consultation, Wages | Tagged , , , | 3 Comments

The Trade Union Bill 2015 – a step too far

The new Trade Union Bill seeks to fight battles that, in reality, were won 20 years ago. There is a danger that all it will do is stir up anger and resentment in the trade union movement – and perhaps that is all the Government wants it to do. I hope, however that it will demonstrate that our law on industrial action has now become ridiculous. We need to sit down and start again from scratch.

Our current law starts from the assumption that that industrial action is illegal – with unions conspiring to interfere with the employer’s business and inducing employees to breach their contracts of employment. However, it then grants individuals and trade unions  a limited immunity if they are acting in contemplation or furtherance of a trade dispute.

The underlying illegality of industrial action gave the Conservative governments of 1979-1997 a suitable peg on which to hang their reforms. Immunity after all is a privilege, not a right. In a step-by-step approach they added more and more legal hoops through which a union must jump in order to keep this special immunity that the law grants them. These requirements go far further than a sensible requirement that strikes should have the support of a fair and democratic ballot. Every stage of the process from calling the ballot to taking the action itself is hedged around with detailed legal requirements.

Now that we have a Conservative majority government once more, it appears that they are keen to carry on from where they left off – adding yet more hoops for unions to jump through.  The Trade Union Bill imposes a range of new restrictions on industrial action – in particular:

  • All strike ballots must have a turnout of at least 50% of those entitled to vote
  • In defined ‘important public services’ such as health, children’s education and transport, at least 40% of those entitled to vote must vote ‘yes’ (so if the strike ballot gets a 50% per cent turnout at least 80% of those voting must vote ‘yes’)

If this was all the Bill provided for, there probably wouldn’t be too much to complain about. I wrote three years ago that there was no need for such a reform (I was right then and I still am) but there is no reason why unions should not obtain high turnouts for strike ballots if they know they have to. However, the Bill goes much further than just imposing thresholds on strike ballots. It also provides that:

  • The voting paper will need to include a ‘reasonably detailed indication’ of the matters in dispute between the union and the employer – expect lots of case law about this one.
  • Instead of simply asking whether the members support a strike or action short of a strike, the voting paper will need to specify what kind of action short of a strike is being contemplated.
  • The voting paper must also indicate the period or periods within which industrial action is expected to take place
  • In notifying its members and the employer of the result of the ballot the union will have to give details of the turnout and whether it matches the new requirements
  • The union will have to describe any industrial action it has taken in the previous year when making its annual return to the Certification Officer
  • The period of notice which the union has to give the employer in order to take industrial action will increase from seven to fourteen days.
  • The industrial action ballot will only be valid for four months from the last day on which votes will be cast. Any industrial action taking place after that period will need to be authorised by a fresh ballot.
  • Where a union organises or encourages a picket, the union must appoint an official or union member to be the ‘Picket Supervisor’ and a range of requirements currently set out in the Picketing Code of practice will become a formal legal requirement.
  • The union must notify the police of the location of any picket, giving the Picket Supervisor’s name and contact details.

The Bill also imposes new restrictions on a union’s ability to donate to political parties, and paves the way for regulations restricting the paid time off given to union officials by public sector employers.

Finally, the Government intends to repeal Reg 7 of the Employment Agencies and Employment Businesses Regulations 2003 which prohibits agencies from supplying workers to cover for those taking strike action. Officially the Government is ‘consulting’ on whether to do this, but since their manifesto promised to repeal this ‘nonsensical’ measure, I think we know how the consultation will turn out. It might be worth noting that this ‘nonsensical’ provision is actually recommended by the International Labour Organisation who will need to be officially informed of its repeal – but I doubt the Government will worry too much about that.

Taken on their own, these provisions can be seen as overly restrictive and draconian. In particular the four month limit on the validity of ballots – with no scope for the union and employer even to agree and extension – will encourage unions to intensify industrial action rather than engage in time consuming negotiations. But when you add these new provisions to the comprehensive legislation already in place, it all becomes absurd. The requirements for lawful industrial action already take up 19 closely typed pages of my statute book. Adding a few more will do nothing to improve industrial relations – in fact, quite the reverse. To read the Bill you would think we were faced with some sort of national crisis with trade unions running rampant and irresponsible strike action bringing the country to its knees. But this isn’t 1979. Some ministers – and some trade union leaders –  may hanker for those glory days, but the rest of us have moved on and grown up (literally in my case).

Other European countries manage to have a more grown up relationship with trade unions based on social partnership and dialogue. Our Government, however, seems happy to see the union movement as an enemy to be beaten – again. Apart from anything else, this simply plays into the hands of those union members (and leaders) who take a similarly partisan view.

The Bill will pass. No amount of debate or protest will prevent that. The best the opposition can hope for are some sensible amendments that will mitigate the Bill’s  worst effects – and I’ll have more to day about that in the next post. But one day, a Government will have to work out a new settlement based on a more balanced and constructive approach. Employees deserve a voice that is listened to and they need to be able to withdraw their labour in an organised, peaceful and democratic way when a dispute with their employer cannot be resolved through negotiation. The law of industrial action should be fit for that purpose. It should promote dialogue and conciliation, but also support what is regarded throughout the western world as a basic human right. This Bill won’t help us do any of those things.


Posted in Industrial action, Trade Union Bill | Tagged , , , , | 3 Comments

The UK never had an opt-out from the Working Time Directive

We really didn’t.

It seems that David Cameron is going to insist on reclaiming the UK’s opt out from employment law as part of his renegotiation of the terms of Britain’s membership. It’s not clear whether the claims are genuine or are simply an attempt by the anti-EU faction in the Conservative Party to ‘bounce’ him into proposing more radical reform than he can possibly achieve, but the story has led to a lot of press and media discussion about the Working Time Directive and the ‘opt-out’ of EU social policy that the UK enjoyed before Tony Blair came to power.

There is a tremendous amount of confusion about what the ‘opt-out’ secured by John Major in negotiating the Maastricht Treaty actually did. In fact its scope was always limited and did not have a huge impact on the way in which Europe influenced UK employment law.

In the Maastricht Treaty back in 1992, 11 of the 12 members states wanted to extend the competence of the EU to legislate in areas of social policy by qualified majority voting. When the UK made it clear that we would not sign up to that they added a protocol on social policy to the Treaty which allowed them to use EU institutions to pass and enforce legislation that would not apply to the UK.

That arrangement came to an end when the newly elected Labour Government agreed to be sign up to the protocol on social policy which was subsequently subsumed back into the main body of the Treaty. The Directives that had been agreed under the Maastricht protocol were then extended to the UK.

As far as I can tell, there were  just four of them:

I think its fair to say that adopting these directives did not radically change the employment law landscape in the UK. That is because most of the ‘big’ employment law areas of the UK were already agreed – unanimously- under previous Treaty provisions. Directives dealing with Equal pay, Pregnancy, Transfer of Undertakings, health and safety, and collective redundancies continued to apply to the UK throughout the period of the so-called ‘opt-out’.

Importantly, the Working Time Directive was not agreed under the ‘opt-out’ provisions. The UK was always covered by it.

What about the Working Time Directive?

One of the reasons Conservatives are so passionate about the Working Time Directive is that they feel tricked. In the Single European Act of 1986, the Thatcher Government agreed a massive extension of qualified majority voting – reducing the number of areas over which any one member state could exercise a veto. One area covered by QMV was health and safety. The Government must have felt that we had very little to fear in this area since in the UK we had extensive and detailed health and safety laws – what harm could it do to allow other member states to catch up a bit?

So when the Working Time Directive – capping the number of hours workers could work, regulating night-work, legislating for rest breaks and paid annual leave –  was proposed as a Directive on health and safety there was outrage. This wasn’t, surely a genuine health and safety measure; it was social policy legislation. The limit on working hours in particular was not really about protecting workers from harm but about the theory that if you limited the amount of work one person was allowed to do then employers would have to hire more people and unemployment would fall.

Although the UK ultimately abstained rather than vote against the Directive, it then launched a legal challenge in the European Court of Justice arguing that the Directive was unlawful because it sis not genuinely concern health and safety. That legal challenge was rejected in November 1996 and it was clear that the Government would have to implement it – although the Conservative party manifesto for the May 1997 General Election insisted that they would not. Ultimately it fell to the Labour Government to introduce the Working Time Regulations 1998.

The Directive always applied to the UK – we were never opted out of it because it was passed under the procedures agreed by the Thatcher Government.

Confusion often arises because there is a provision in the Directive – very much the UK’s doing – which allows members states (not just the UK) to provide for workers to agree to work more than 48 hours a week. That provision is still there (Article 22) and is reflected in Regulation 4 of the Working Time Regulations. So individuals can ‘opt-out’ of the limit on working time. They cannot ‘opt-out’ of any of the other provisions in the Regulations and there is no sense in which we have ever had an opt-out from the Working Time Directive itself.

Nor will we ever get one. It is simply inconceivable that the other 27 member states will agree to allow the UK to enjoy the competitive advantage of lower social protection while remaining in the single market. Any relaxation in the rules would have to apply across all of the member states  and would represent a fundamental shift in the nature of the EU. Perhaps it could happen one day, but the chances of David Cameron obtaining the agreement of all member states in time for the UK’s referendum in 2017 are roughly zero.

If we stay in the EU we will have to accept that some – though by no means all – of our employment laws will be governed in part by European law. That’s the deal. Let’s just get this referendum over with and then we can perhaps move on.

Posted in EU law, Uncategorized, Working Time and Annual leave | Tagged , , , , , | Leave a comment

Can a cake even BE gay?

UPDATE: 24 October 2016

Today the Court of Appeal in Northern Ireland upheld the county court decision I discuss below. You can read the full decision here if you are keen. On a brief scan through, I think I pretty much stand by the arguments I make here and that the decision is wrong. I’ll write a more substantive post when I’ve given it some proper thought!

It has become universally known as the ‘gay cake’ case. But of course, it is not the sexual orientation of the cake that is what matters here. Or is it?

I’ve written before about the Northern Ireland case of Ashers, the bakers  who refused to bake a cake advocating support for gay marriage.  But that was before we had this judgment from the Northern Ireland County court. Having read the decision I am even more convinced that what Ashers did was not discrimination on the grounds of sexual orientation.

(In this post I am only going to look at the sexual orientation issue, but it’s worth noting that the case was also upheld on as discrimination based on political opinion. In Northern Ireland there is a much wider law protecting political belief than we have in the rest of the UK but I don’t think I’m sufficiently familiar with the case law to comment.)

Cards on the table first. As I wrote back in November, I support equal marriage rights – and I’m not religious. I believe strongly that businesses should not discriminate on the grounds of sexual orientation irrespective of what their religious convictions tell them. So when I say that I don’t think that Ashers Bakery did discriminate on the grounds of sexual orientation, that does not come out of any sympathy with their world view.

Basically, I just don’t think that sexual orientation is the same thing as support for gay marriage. The judge in the case disagrees. Here is what she said:

I prefer the Plaintiff’s submission that same-sex marriage is or should be regarded as a union between persons having a sexual orientation and that if a person refused to provide a service on that ground then they were discriminating on grounds of sexual orientation. (para 36)

That reasoning was based on the Supreme Court decision in Bull which was concerned with a hotel refusing to give a room to a same-sex couple. Of course you can’t separate the fact that someone is gay from the fact that they are in a same-sex relationship. But that is not the same as regarding support for equal marriage as being inseparable from sexual orientation.

The bakery argued that it was the cake that they objected to, not the customer. Had any other customer, irrespective of sexual orientation, ordered the same cake they would have been treated in exactly the same way. In rejecting that argument the court said:

the correct comparator is a heterosexual person placing an order for a cake with the graphics either ‘Support Marriage’ or Support Heterosexual Marriage’  (para 42)

That makes no sense to me. Why would you change the nature of the cake when considering the comparator? That would only make sense if it was absurd to suggest that anyone who was not gay would ask for a cake supporting gay marriage. This does seem to be the Judge’s view, however. The judge actually says in the same paragraph that support for same sex marriage is ‘indissociable from sexual orientation’.

But lots of people who are not gay support equal marriage – millions of them! They may not often order cakes expressing that view, but there is nothing inherently implausible or absurd in them doing so. Entering into a same sex marriage or having a same sex partner might be indissociable from your sexual orientation, but supporting a policy of legalising gay marriage is nothing of the sort.

Perhaps I’m missing a more subtle argument here.  Robin Allen QC for the Plaintiff had stressed that discrimination had to be ‘on the grounds of sexual orientation’, but did not have to be on the grounds of the sexual orientation of the customer. This is a well established principle. If I discriminate against you because I discover that you have gay friends, then that will be discrimination even if it is not your sexual orientation that I have a problem with.  But perhaps Robin Allen was seeking to take this further. The Judge summarises his main point as:

‘The defendants refused to make the cake because they took exception to gay sexual orientation as being sinful’

Could the argument be that discrimination is made out if the refusal to bake the cake was on the grounds not of the sexual orientation of a person, but on the grounds of sexual orientation in the abstract? It is certainly the bakers’ views on sexual orientation that have led them to refuse the order – just not the sexual orientation of the customer, or any other individual. If this was the argument I’m not sure the Judge accepted it – but I can at least see that your views on gay marriage are inseparable from your views about sexual orientation.

But I think equality law was meant to protect people not ideas. The logic of the argument would be that anyone who asked for a cake supporting gay marriage would be able to claim discrimination if refused because the refusal would be on the grounds of sexual orientation. It seems to me that this is not what discrimination law is for. It should not be used to  make people participate  – however tangentially – in a political campaign that they strongly oppose.

This is a big issue in America where the protection of free speech is treated very seriously. The argument is ongoing but it appears, for example, that printers can refuse to produce material supporting positions that they oppose because the right to speak freely includes the right not to speak at all. Frankly I have a lot of sympathy with that.

In the Asher’s case however, an argument based on the right of freedom of expression under Article 10 of the European Convention was given short shrift. Article 10 was not engaged because the bakers were only required to produce a cake, not endorse a position on gay marriage. Even if they were, the restriction on their freedom of speech was legitimate, because it was necessary in a democratic society to protect the rights and freedoms of others.  Personally, I am uncomfortable with the right to free speech being dismissed quite so lightly.  The Judge may have felt that producing the cake did not involve supporting gay marriage, but I don’t think judges should be telling citizens what should or should not burden their conscience.

Incidentally, here is a case from Colorado where a baker refused to bake a cake with an anti-gay message (a quote from the Bible no less) and it was argued that that amounted to religious discrimination against the customer. The case was thrown out but I wonder what view the Equality Commission for Northern Ireland would take? Would a bakery run by a gay couple be required to bake cakes with a quote from Leviticus?

It is bizarre that baked goods seem set to become a battleground between freedom of speech and the cause of gay equality.  I think it should be possible to support both. Businesses should treat all customers equally regardless of their sexual orientation, but I don’t think that should require people to produce material for a campaign that they do not support.

Posted in Sexual Orientation | Tagged , , , , | 9 Comments

Dear Jeremy, ever heard of the Equality Act?

Is it OK if an employer asks a job candidate questions about their childcare arrangements?

The question has come up because in a ‘Dear Jeremy’ article in the Guardian (a sort of workplace agony uncle column) A reader wrote in describing a job interview in which she was asked how she would meet the requirements of the job while also providing care for her two children. Jeremy replied by suggesting that, while poorly expressed, the question was a fundamentally fair one. This is what he goes on to say:

At a cool, factual level, it is indisputably the case that when women are carrying the majority duties of bringing up young children they need to be more inventive than their male partners in programming their various work and home responsibilities. And when a child’s illness or demands from school intervene, it is often the mother rather than the father who chooses (or is chosen) to do the necessary juggling – which may well have a brief impact on her timekeeping. Most are skilled at covering or working late, and take pride in ensuring that the impact on work is minimal. This allocation of responsibilities between parents may be unfair and may well be unnecessary – but it’s certainly not uncommon.

The male interviewer who asked you how you would cope bearing in mind that you had two children was certainly guilty of clumsiness and insensitivity – but to his not very empathetic mind, he was simply acknowledging an understood reality and wanting to know how you managed it. In that respect I honestly don’t see that there was anything inherently offensive about his question. I think your immediate reaction was a bit extreme, and I fear this reaction may have disproportionately coloured your view of the entire company.

I found out about this when Simon Jones tweeted a link to a blogpost by Ruth Cornish giving an alternative (and much better) response to the problem. Its really well worth reading and I won’t add anything to what she says about the experience of being a working mother and suffering discrimination as a result. I shall ‘check my privilege’ as I believe the current phrase has it and concentrate at ‘a cool, factual level’ on the legal position.

How discrimination works

The Equality Act does not (with one exception*) limit the questions that an employer can ask at a job interview. In that very technical sense asking a woman about her childcare arrangements is probably not illegal in itself. However it may well be strong evidence that an act of direct discrimination has occurred.

Direct discrimination happens when someone is treated less favourably because of a protected characteristic, of which sex is one. If, therefore, an employer asked about childcare arrangements to draw attention to its state-of-the-art creche facilities or award-winning approach to flexible working then that might be OK, because it wouldn’t involve less favourable treatment.

But of course that is not the situation here. If an employer asks about children, then a Tribunal may well ask why it is so interested. Any employer tempted to answer the question in the same way as Jeremy does is doomed to lose the case. The assumptions that Jeremy makes about where the burden of childcare falls are based on sex and an employer who declines to employ a woman because of those assumptions is clearly treating her less favourably because of sex however carefully and tactfully it tries to express the fact. There is no defence of justification to a direct sex discrimination claim. The validity of Jeremy’s assumptions are neither here nor there. It simply does not matter whether ‘in general’ women are more likely to compromise at work to meet obligations at home. This is not an assumption that employers are entitled to act upon.

It is also worth noting that employers cannot avoid sex discrimination simply by asking everyone the same question. It is not the question that is discriminatory, but the assumptions that underlie it. Asking men about their childcare arrangements will not help if the Tribunal believes that it was the answers from women that the employer was really worried about.

Don’t forget indirect discrimination

Employers are of course entitled to know about the extent to which a job applicant is committed to the job and will be able to devote time to it. They simply have to avoid making their own assessment of that based on stereotypical views of the role of women in the family.

But they also need to know about the risk of indirect discrimination. Suppose the employer were to say ‘this is a busy job which requires very punctual attendance and reliable timekeeping, Is that something you are comfortable with’?  There is no direct discrimination there because (assuming there is no subtext) they are not making any assumptions about the ability of women to meet the requirement. But there may be indirect discrimination.

Indirect discrimination happens when an employer has a practice which causes a particular disadvantage to a group which shares a protected characteristic (like women, for example) and which it cannot demonstrate to be a proportionate means of achieving a legitimate business need or objective.

Now here’s the fun part. In an indirect discrimination case, the generalisations made by Jeremy about how childcare is typically managed may come to the fore. An employer cannot act on the basis that the generalisations are true in any particular case because that would be direct discrimination. However, if we can show that on the whole they are generally true then that would help to establish the ‘particular disadvantage’ needed for an indirect discrimination claim.  If  women in general find it harder to meet strict attendance and timekeeping requirements because of their caring commitments then a requirement to do so will case them a particular disadvantage.

I really need to emphasis the ‘if’ in that least sentence. I doubt we could make a case that a  requirement for good timekeeping causes a particular disadvantage to women. However a requirement to work additional hours at short notice, or to work at weekends or travel extensively might well cause a particular disadvantage for the sort of reasons that Jeremy is talking about.

So even if a question is framed in a completely neutral way, the employer may still be liable for indirect sex discrimination. Crucially, however, the employer has a defence of justification available.  As long as the employer can show that the job requirement is a genuine one and is proportionate to the actual needs of the business, then asking candidates about their ability to fulfil the requirement will be fine.

But asking job candidates about their childcare arrangements is a really bad idea leaving an employer wide open to discrimination claims. In the case of the woman writing to Jeremy she is perfectly within her rights to complain – although whether she would consider it worth her while to bring an actual Tribunal claim would be a matter for her.

As for the employer, if it has any sense, will want to look carefully at how it conducts job interviews. If I had any commercial savvy about me I’d probably plug a training course at this point. But that would just be vulgar!

*the exception, since you ask, is s.60 which prohibits questions about health before a job offer is made

Posted in Equality Act, Recruitment | Tagged , , , , , | 1 Comment

We shouldn’t scrap race discrimination laws

This is all the fault of Daniel Barnett. He rather mischievously pointed me in the direction of this article in Spiked – the online magazine that likes to think of itself as punchy and edgy. It was written by a barrister – Jon Holbrook – and it is quite possibly the most wrong-headed thing I have ever read. I am almost literally fuming at how wrong it is. And ignoring the shouts of ‘leave it Darren, it’s not worth it’ I would like to explain what is wrong about it because I think that will make me feel better.

Holbrook begins by noting that the British political establishment came down on Nigel Farage like a ton of bricks when he appeared to suggest that workplace race discrimination laws should be abolished. He proposes to develop the debate ‘that Farage tried to start’. What follows is an argument to the effect that race discrimination law stops employers from recruiting and promoting on merit and requires them to lower their standards to admit more black and minority ethnic candidates. Yes really.

First of all, in response to Sadiq Khan who had made a point about the racism his parents suffered Holbrook says:

The reality, of course, is that attitudes towards race have changed beyond recognition since Khan’s parents arrived in the UK. Racism, as the denial of equality of opportunity, is now a thing of the past. Khan’s inability to use a contemporary example of workplace racism was testament to that fact.

I mean. Really? If this was all Holbrook had said I wouldn’t have bothered replying. There are many better qualified than me to talk about the reality of racism today.  I would just suggest, however, that the fact that Sadiq Khan’s article referred more to past than to present race discrimination doesn’t mean there aren’t any current examples that could be referred to. Try Googling the phrase ‘race discrimination claim upheld‘.  Discrimination may not be as overt as it once was, but it has not gone away.

But even if it were true that there was no longer any workplace discrimination, I don’t see that that amounts to an argument for abolishing discrimination law. Developments in security procedures mean that bank robberies are largely a thing of the past, but no-one suggests legalising them.

Direct discrimination – all but disappeared?

The main point I wanted to pick up on however, is what Holbrook says next. Brace yourselves.

In recent years, direct discrimination claims in the workplace have all but disappeared in favour of claims described by the law as indirect discrimination claims.

My reaction to reading this sentence is difficult to describe. Imagine walking across a bridge over the M25 with a friend who turns to you and – shouting to be heard over the noise of the traffic  – says ‘of course in recent years, cars have all but disappeared in favour of bicycles’. When it became clear that he wasn’t being ironic you might seriously worry about his grip on reality.

Quite where Holbrook gets the impression that race discrimination cases are mainly about indirect discrimination is a complete mystery. I would love to know how he arrived at this idea and perhaps he’ll comment on this post explaining his methodology. But anyone with experience of discrimination law – and I suspect that Holbrook does not belong in this category – can tell you that most race discrimination cases are either about harassment or victimisation or straightforward less favourable treatment on the grounds of race. Indirect race discrimination cases are positively unusual.

In researching his article Holbrook obviously decided to read a case and came upon the EAT decision in Essop & Ors v Home Office which is about indirect race discrimination. Perhaps like an alien landing in the desert who assumes that the world is made of sand, he assumed that Essop is typical of race discrimination claims.

Essop is not typical, but it is a neat illustration of how indirect discrimination works. In Essop the pass rate in a test used by the Home Office was shown to be lower among BME/older  employees than for younger/non-BME employees. The difference is not set out in the case but it was agreed to be statistically significant. The EAT allowed the claim to proceed despite the fact that the reason for the lower pass rate – both among the disadvantaged group as whole and the individual claimants was not known. Langstaffe J held that it was enough that the process could be shown to disadvantage a particular racial group. Holbrook says:

In truth, cases of indirect discrimination, of which the Essop case is a good example, never establish racism. Essop was not prevented by his race from becoming a higher-executive officer in the civil service; all he had to do was pass the same exam, which was not racially biased, as everyone else. Indirect discrimination claims succeed not for a want of equality of opportunity, but for a want of equality of outcome.

Holbrook’s point seems to be that race discrimination is now all about indirect discrimination (it really isn’t, remember) and that indirect discrimination is not ‘proper’ discrimination because it isn’t about racism.  This is an absurdly narrow view. In any event, indirect discrimination is not about equality of outcome; it is about unjustified disadvantage.

In talking about Essop notice that Holbrook asserts that the test ‘was not racially biased’. However, that is not what the case says. The point is that the cause of difference has not been identified. However, the fact that the test clearly puts a racial group at a ‘particular disadvantage’ is not just a statistic. It might indeed be that there is a racial bias hidden somewhere in the structure of the test. It might also be that the difference has its roots in the socio-economic backgrounds of the people taking it or it might be about language.

What about the justification test?

Employers accused of indirect discrimination claims have a defence if they can show that the ‘provision criterion or practice’ at issue is a ‘proportionate means of achieving a legitimate aim’.  The Essop decision was concerned only with the preliminary point about the nature of the disadvantage. The case is then sent back to the Employment Tribunal to consider the issue of justification. Justification is absolutely central to indirect discrimination. You simply cannot talk meaningfully about indirect discrimination without talking about justification.

So, given that most of his article is a critique of indirect discrimination it is bizarre that at no stage does Holbrook refer to the defence of justification. Why not? Perhaps he would like to comment on why he thought the concept was not worth referring to. He obviously knows that there is a defence of justification – some of his phrasing is very careful – but he never actually refers to it directly and explains what it is. Is there any explanation other than a desire to make indirect discrimination sound as unreasonable and oppressive as possible?

Nothing to fear…

Instead of explaining how the law actually works he chooses to describe the effect of the law based on what employers ‘fear’.

In the workplace employers fear they may be castigated by statistics showing they employ a disproportionately low number of BME staff, or a disproportionately low number of BME staff on higher pay grades, or a disproportionately high number of BME staff on lower pay grades. Statistics of this sort (which can be sliced and diced in any number of ways until the disproportionate outcome is discovered) can be enough to leave an employer facing the moral obloquy of a ‘race discrimination’ claim in an Employment Tribunal. 

This is an old trick. Rather than complain about what the law actually is, complain about what people think it is. That way you don’t have to make any effort to understand the subject. Actually Holbrook gives no evidence that employers do fear these things – but the clear implication of his article is that they should. But why? Our law does not require diversity; it requires an absence of discrimination. You can’t actually claim indirect discrimination just by citing statistics. You need to show that there is a ‘provision criterion or practice’  that is causing you a disadvantage and which also causes a particular disadvantage to people who share a protected characteristic with you. Lots of employers will have a disproportionately high number of BME employees in lower grades. How many of them actually get sued as a result?

Spiked likes to think of itself as offering something ‘fresh innovative and irreverent’ but this is just the same sort of ‘political correctness gone mad’ whinge we’ve seen so often in the mainstream media. It seeks to confirm prejudices rather than challenge them. Instead of increasing understanding it spreads misinformation. Readers of Spiked may be forgiven for thinking that because Jon Holbrook is a barrister and was shortlisted for a legal journalism award at last years’ Halsbury Legal Awards then he must know what he is talking about. On the evidence of this article, he doesn’t.

Posted in Indirect discrimination, Race Discrimination | Tagged , , | 7 Comments