Philosophical Belief Discrimination

Interesting.... (no known relation)

Philosophical Belief Discrimination

"Can an employer discriminate on grounds of philosophical belief where the employee is the only person to hold such a belief?

No, held the EAT in Gray v Mulberry.

Ms Gray worked for Mulberry. She refused to sign a standard contract clause assigning copyright in her work to her employer, fearing it would give them ownership over a novel and screenplay she was writing (even though the contract was amended to exclude them). She was eventually dismissed.

She claimed her belief in the sanctity of copyright law was a philosophical belief and thus a protected characteristic. The Employment Appeal Tribunal, after considering the necessary limbs for establishing a philosophical belief, held that the tribunal was entitled to conclude that the belief lacked sufficient cogency to qualify under the Equality Act 2010.

Of more interest, the EAT held that even if it was wrong, there could be no indirect discrimination because Ms Gray was (as far as the evidence went) the only person known to hold such a belief. Accordingly there could be no disadvantaged group, as she was not part of any group. Thus her indirect discrimination claim had to fail. Permission has been granted to appeal to the Court of Appeal". hat tip www.danielbarnett.co.uk 

Employment Tribunal Fees Review: "You are fired because I can - and if you are by yourself there is little or nothing you can do about it"

Checkout this report by employment law expert Daniel Barnett.  Workers should not fool themselves that the law protects them at work.

Despite our faults, trade unions are the only real defenders of your rights at work. To get any chance of justice at work in this country you either have to be rich... or a trade union member.

The last Tory Government introduced upfront fees for seeking fairness at work. In most cases £250 for simply making a claim and then a staggering £950 for the hearing. £1200 in total!

Never mind the cost of paying for your solicitors or any other fees. No wonder there are so few actual claims now despite many of them thought to be potentially with merit and therefore winnable. Rogue bosses up and down the country are rubbing their hands with glee.

"The House of Common Justice Committee has published its review into Court and Tribunal Fees.  Note this is not the government review which was completed in 2015 but has not been published, about which the report is deeply critical at paras 58 and 59.

These are the key findings of the report:-

• there has been a significant drop in the number of employment tribunal claims

• the government's assertion that the drop is largely attributable to the success of Acas Early Conciliation is "even on the most favourable construction, superficial" (para 69)

• fees "have had a significant adverse impact on access to justice for meritorious claims" (para 69)

• the 'type A' and 'type B' claim distinction did not relate to the complexity or length of cases (para73)

• the level of fees should be a "substantially reduced" (para 79)

• the remission system should be overhauled, with only one application needed (to cover both issue and hearing fees)

The report also recommends special consideration - and a review of the three month time limit - in pregnancy discrimination cases (para 79).

This report is embarrassing for the government, but has little political impact (especially as the timing of the report, three days before the Brexit vote, means it will receive very little press attention)".

Monitoring Employees' Use of the Internet

Be warned!!!! I have made a number of urgent messages to union members over the years asking them to remove a post on social media about their employer or work colleagues.

"Is the right to respect for private life and correspondence breached if employers monitor employees' personal communications at work?

No, subject to reasonableness/proportionality, according to the European Court of Human Rights in Barbulescu v Romania.

Mr Barbulescu was an engineer who used his business Yahoo Messenger account to send and receive personal messages with his fiancee and his brother, including messages about his health and sex life. This was in breach of his employment contract. His employer, discovering this accidentally, dismissed him. Mr Barbulescu argued that the Rumanian courts should have excluded all evidence of his personal communications on the grounds it infringed his Convention rights to privacy.

The European Court of Human Rights held that Article 8 (right to respect for private life and correspondence) was engaged, but that the Rumanian courts were entitled to look at that evidence in deciding whether the dismissal was justified. The European Court was swayed by the fact that the Romanian court judgment did not reveal the precise content of the personal messages, but only the fact that they were personal messages. The Court recognised the need for employers to be able to verify that employees are completing professional tasks during working hours".

hat tip Daniel Barnett

A Christmas Carol by the High Court

Scene:
Any solicitor’s office in the country (except the Strand).
Solicitor:
So, Ms Peasant you have been sacked because you are pregnant and you have come in for a free interview.  Typical of your sort if I may say so.
Client: 
It’s so unfair.  I want to bring a claim.  You do no win no fee don’t you?
Solicitor: 
WE do. The State doesn’t.  Tribunal fees are £1,200.00 win or lose.
Client: 
I haven’t got that sort of money!  I am unemployed.  I’ve been sacked.
Solicitor: 
Come, come now.  I am an employment lawyer.  I know the minimum wage is £6.50 an hour.  Easy to remember; it is one hundredth of what I charge – 200 hours work and you have the fee, unless we need to appeal.  Cut out the foreign holidays. Sack the nanny – she won’t be able to afford the fee to sue you.  My little joke!
Client:  
My Mum looks after the children.  We only just got by when I was working.
Solicitor: 
There I can help you.  You need to prioritise your spending.  The High Court has said so.  Eat your existing children – Swift said that and he was a clever man, but you peasants don’t read you just watch Sky.
Client: 
We don’t have Sky.  Murdoch is nearly as right wing as the High Court.
Solicitor: 
Go down the library and read Swift.
Client: 
They’ve closed the library.
Solicitor:  
Have an abortion.  Save you money and I might be able to get your job back.
Client: 
I don’t want an abortion.  Anyway they’ve closed the clinic.
Solicitor:
Find a rich man.
Client: 
I am married.  My husband was sacked for complaining about my treatment at work.
Solicitor: 
Oh then he has a claim as well then.  Another £1,200.00 mind.
Client:  
I’ve had enough!
Solicitor: 
I advise on the law; I don’t make it.  I want to read to you what the High Court said:
“The question many potential claimants have to ask themselves is how to prioritise their spending; what priority should they give to paying fees in a possible legal claim as against many competing and pressing demands on their finances?”
It goes on a bit but basically do you want to bring a claim or eat and feed and clothe your children?
Client: 
But no-one should have to make that choice in Britain in 2014.
Solicitor:  
That’s where you are wrong.  The court said:
“The question is not whether it is difficult for someone to be able to pay – there must be many claimants in that position – it is whether it is virtually impossible and excessively difficult for them to do so”.
Client:  
That’s wicked.
Solicitor: 
That’s the High Court. Lord Justice Elias is paid £198,674.00 and Mr Justice Foskett £174,481.00 so they know all about having to count the pennies.
Client:
Surely Labour will change all this.
Solicitor: 
Nope.
Client:  
I think I will vote for the Fascists then.
Solicitor:
They tried that in Germany. Didn’t do them much good. Nice rallies mind.
Client leaves.  Solicitor hums the Horst Wessel.  There is a muffled explosion.  The local court is in ruins.

Hat tip Daniel Barnett and Kerry Underwood

(My lesson number one - if you are in work and want justice at work, join a Union  http://www.tuc.org.uk/about-tuc/union-finder)

The Unfair Dismissal Song....

Hat tip Employment Law specialist Daniel Barnett for his link to the Unfair Dismissal song. 

Where a female boss laments she is being taken to the cleaners in an Employment Tribunal for sacking a member of staff without following proper procedures.

If only....

Headphones or speakers on.

(I think the singer is okay but she should do all she can to keep the day job. The original Bananarama version was much, much better but without the social justice message of course. Ah, those were the days)

CRATUPEAR!

CRATUPEAR is the acronym of the "The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014" which comes in force on 31st January 2014. 

Hat tip to Daniel Barnett Employment law bulletin  for this information and the summary of the changes below. The Tories have tried to water down employment protection for workers but it seems to me they are making TUPE even more complex, confusing and potentially litigious than ever.

"The summary below of what the government is not changing is probably as important as what it is changing. The main changes which the government is proceeding with are amending the TUPE Regulations to:-

allow renegotiation of terms agreed from collective agreements one year after transfer, provided any changes are no less favourable to employees,

the location of a workforce can be within the scope of an economic, technical or organisational reason entailing changes in the workforce, thus preventing genuine place of work redundancies from being automatically unfair.

clarify that for there to be a TUPE service provision change, the service provision must be "fundamentally or essentially the same" as before the transfer

allowing microbusinesses to inform and consult directly with employees (in some circumstances) allowing TUPE consultation to satisfy collective redundancy consultation rules.

Importantly, the government is not:- removing 'service provision change' from what amounts to a TUPE transfer removing the transferor's obligation to provide employee liability information; rather, the time for providing such information is increased to 28 days.

 Also mentioned is the extension of the right to request flexible working to all employees with 26 weeks' service, which will come into force on 6th April 2014".

Wake up & smell the Coffee: Do not expect the State to give you Justice at Work

Tomorrow UNISON is taking the Government to court in a judicial review of the decision to charge as much as £1,200 to take your employer to an employment tribunal. If you lose then expect to pay £1,600 to go for any appeal.

This is on top of any solicitor or barrister costs you might have to pay.

As this chart from the Employment Tribunal service indicates claims have not surprisingly dropped like a stone with the imposition of charges. While these figures are provisional it would seem to be clear that only the rich will be able to get justice at work in the future.

Except for union members. I think all the major unions have agreed to pay these charges upfront and supply free legal advice and representation if (and this is important) they think a member has a winnable case.

Remember that you cannot just join a union when you have a problem at work and expect representation.  It is like trying to buy household insurance after you have had a fire. All unions have waiting periods.

So join a union now! If you work in public service then join UNISON of course here 24/7. Or check out the TUC Union finder website.

Best of all is that the more people in your workplace who are in a union, the better you will be treated by your employer and the less likely you will ever need to go to an employment tribunal!

So - as they say over the pond - wake up and smell the coffee. The State will not give you justice at work, the only one who can, is your union.

Hat tip Captain Swing and Daniel Barnett employment law e-news alert.

Why you cannot rely on the Courts to protect you at work

Today I read a case summary in Daniel Barnett's employment law e-newsletter about a recent Employment Appeal tribunal judgement, where it was agreed that a claimant who had been dismissed had been treated very harshly but since it was not "perverse" it was not unlawful.

'It was not the task of the employment tribunal or the EAT to decide whether the dismissal was fair.' 

You would have thought that was the whole point of making a claim for unfair dismissal?

While I am not sure the source of this quotation I think this sums up much of what is wrong with tribunals and shows up the unrealistic expectations that many (most?) workers have over their rights at work.

Not only has this Tory lead coalition government been rolling back employment rights all over the place (extended waiting period for unfair dismissal from 1 to 2 years, getting rid of lay judges, introducing upfront fees etc) but workers need to understand that tribunals are not about truth and justice. They do a lot of good things still (such as with discrimination) and act as a brake but they are not the "Peoples Courts" they are not an independent arbitrator of fairness in the workplace. Instead its all about contracts and processes.

In 2005/6 only 18% of claims were successful in a full hearing and the median award in 2012 was under £5000.

That is why you need trade unions at work. Collective is best.

Employment Court closes since it has run out of money

It would seem that this Tory led Government is intent on turning our Country into some sort of banana republic.  The employment law newsletter by Daniel Barnett reports :-

"For those practitioners with cases due to be heard at London (East) Tribunal in the next couple of weeks, be aware you may experience difficulties.

The tribunal is sending out letters postponing hearings on the basis that it has "reached the full extent of the budget allocation for this financial year and, as a result, there is no remaining judicial resource available to hear your case."

It would seem that all cases listed for a hearing before the end of the financial year (4 April) will have to be cancelled since the Tribunal has ran out of money. Many people might have waited months if not years for these hearings. Who knows when they will be heard again?

Once again, it shows that you cannot reply on the law to protect you at work. There is only the unions. 

Employment Law Prospects 2012: Workers are going to be stuffed

This is from the newsletter published yesterday by Employment Law Barrister Daniel Barnett:-

"Expected Developments in Employment law" 2012 (my comments in italics)

"31 January
closure date for calls for evidence on the effectiveness of TUPE and the scope of the collective redundancy rules - may result in a formal consultation later in the year (TUPE protection will be brought down to the absolute minimum and you could be made redundant in just 30 days)

1 February
new tribunal award limits come into force (Good but still inadequate)

6 March
consultation closes on fees in tribunals and the EAT (It could cost you around £1750 to go to an employment tribunal - far more if you want to appeal)

April
expected that qualifying period for unfair dismissal will increase to 2 years · various tribunal reforms to take effect, e.g. increase in deposit orders and costs awards (bad)· unpaid parental leave to increase to 4 months · working time rules to be amended to allow holiday to be carried forward in limited circumstances · maternity/paternity/adoption pay increases · SSP increases (you could be sacked for no good reason after 1 year 11 months and you will have no effective legal remedy)

October
pensions auto-enrolment begins for larger employers (Good) · national minimum wage may increase, depending on what the Low Pay Commission recommends in February (wait and see)

Developments with no confirmed date but likely to be progressed in 2012
penalties for employers who breach of employment rights (Good but expect wrist slap)· early compulsory ACAS conciliation of all tribunal claims (possibly good) · amendment of whistleblowing rules so that disclosures about breaches of employment contracts are no longer covered (Bad) · compromise agreements to be simplified (possibly good) · consultation on 'protected conversations' between employers and staff about employment issues without risk of dispute (your employer could bully you out of your job legally without protection)· consultation on rapid resolution scheme as alternative to tribunal for low-value and straightforward disputes (Fixed penalty ticket justice?)

· Acas Disciplinary and Grievance Code to be 'looked at' with a view to a simpler dismissal process (nuf said?)

Do not expect the "law" to protect you at work. Time to join a union for collective protection and the Labour Party to get rid of this Government in 2015.

Lord Justice defends Employment tribunals

"In a fascinating judgement handed down today, the Court of Appeal has delivered a robust, compelling and bold defence of the employment tribunal and judicial system". So said Employment law solicitor, Daniel Barnett, in his e-newsletter last Friday about "Red" Lord Justice Mummery's recent judgement.

Now, I must admit that I think there are indeed serious problems with the employment tribunal system. For me the system is unfairly biased against workers and I would like to see it reformed and rebalanced otherwise. 

But, the present government is pushing ahead with plans to get rid of many of the already basic and minimal employment protection and enforcement rights that British workers "enjoy".

So, since we already have possibly amongst the worse employment rights in Europe already it is actually a relief to read that a very senior judge believes that the existing system works and therefore (by implication) does not need to be watered down any further.

The judgement makes a number of points but I think No. 20 is compelling   "...as for those who complain about the time taken and the legal costs and other expenses and losses incurred, I think that they would want the hearings to be conducted in the interests of justice to both sides. I have seen very few constructive suggestions for practical improvements. If workers are given rights, there must be properly qualified, impartial and independent tribunals to adjudicate on them in accordance with a fair procedure. If workers are not given the necessary means for the just adjudication of their claims, procedures of a more rough and ready non-judicial kind may be used. The alternative procedures would probably not be impartial, independent or just, and are unlikely to do much for public order, social harmony or national prosperity". 

GMB lose Allen Case

Bad news for the GMB and maybe the other public service unions. The Court of Appeal has handed down its very important judgment on this controversal case.

An Employment tribunal (ET) in Middlesbrough in 2006 found that the GMB had indirectly discriminated against union members by recommending a pay deal which did not offer adequate compensation to female members for past unequal pay. The Union was found to have had a legitimate aim of securing a fair deal for all but since they did not pursue the back pay meant that they had not been “proportionate”.

The Employment Appeals Tribunal (EAT) in 2007 found in favour of the union. Today the Court of Appeal overturned the EAT.

Permission to appeal the House of Lords has been refused. Although I understand that you can appeal direct to the Lords.

There is a 16 page written judgement here.

Employment lawyer Daniel Barnett (e-bulletin) reckons that there are 4,000 claims against the GMB and 7,000 against UNISON. He calls it “A very bad day for unions....”