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By Michael Scutt, 06/11/2009 6:10 pm

There have been some noteworthy cases over the last couple of weeks, such as;

Grainger plc v Nicholson UKEAT/0219/09/ZT

Climate change can be a philosophical belief and thus capable of protection within the terms of the Employment Equality (Religion or Belief) Regulations 2003. Please see my previous post on this high profile case.

Autoclenz  Ltd v Belcher & ors [2009] EWCA Civ 1046

A case on the distinction between employee, worker or self-employed.  The Respondents were car valeters.  All the factors usually considered in determining whether a person was employed or self-employed suggested they were employees. The “contract” they signed said they were “sub-contractors” but that did not reflect the reality of the situation.  The CA held they were employees.

Attridge Law v Coleman UKEAT/0071/09/JOJ

The EAT has confirmed that “associative discrimination” is covered under the Disability Discrimination Act 1995 (DDA).  In other words, a mother who sought flexible working from her employers in order to care for her disabled son, but whose employment was subsequently terminated, can bring a claim under the DDA as a result of being treated less favourably.

X v Mid-Sussex CAB   [2009] UKEAT 0220_08_3010

Another DDA case. Volunteers are not protected by the DDA or the EU Framework Directive.   

Abbreviations

ET = Employment Tribunal

EAT = Employment Appeal Tribunal

CA = Court of Appeal

Please contact me for further details on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

These summaries contain my understanding of the law.  They do not constitute legal advice and you should not act upon or rely upon anything contained in this summary (or anywhere in this blog) as legal advice.

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By Michael Scutt, 05/11/2009 10:35 am

For those of you on Twitter I am being twitterviewed tonight by 22Twts. If you haven’t come across one yet, a Twitterview is a series of (22) questions posed by Lance Godard and my responses, in real time, on Twitter.  Lance asks some really interesting and high-profile people to do his Twitterviews so I’m delighted to be asked to take part and be in such august company.

It starts at 20.00 GMT and please take a look when I will be revealing my deepest darkest secrets, or something, as well as talking about Dale Langley & Co and employment law.  I don’t think Hello or Ok magazines will be terribly interested though.

 You can follow me  = @michaelscutt  and the  twitterview can be found at @22twts and #22twts 

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By Michael Scutt, 04/11/2009 3:14 pm

The case of Grainger PLC v Nicholson UKEAT/0219/09/ZT gained lots of media coverage, including the front page of today’s The Independent (“Green beliefs win legal protection”).  I covered the case when it was before the Employment Tribunal and Mr Nicholson initially won.  The Employment Appeal Tribunal (EAT) has rejected the company’s appeal and held that Mr Nicholson’s belief in climate change is capable of qualifying as a philosophical belief within the meaning of the Employment Equality (Religion or Belief) Regulations 2003. These regulations protect workers with religious or philosophical beliefs from being discriminated against because of their religion or belief.  This was a preliminary hearing on whether belief in climate change could qualify within the meaning of those Regulations.  Mr Nicholson still needs to return to the ET for the case on its facts to be decided.  That will include cross-examination of his beliefs to establish to what extent they govern his life.

It is predicted that this decision will lead to employees being able to claim that they have been discriminated against on the ground of any spurious or loony belief that they might have or pretend to hold.  Undoubtedly employers are going to face some interesting assertions of belief over time.  To assist in considering what factors should be taken into account when considering the nature of the asserted belief, the EAT set out some guidelines for deciding whether a “philosophical belief” should qualify;

1. The belief must be genuinely held
2. It must be a belief and not an opinion or viewpoint based on current information
3. It must be a belief as to a weight and substantial aspect of human life and behaviour
4. It must attain a certain level of cogency, seriousness, cohesion and importance
5. It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others   

The judgment notes that political beliefs could qualify for protection and, given the furore over Nick Griffin’s recent appearance on BBC’s Question Time and subsequent media concern that the BNP is on the rise, it is interesting to consider whether a member of the BNP  who is dismissed from his/her job because of support for the BNP could qualify under these Regulations for protection.  This was raised in Grainger and the Court pointed to (5) above as the limitation which should prevent “racist or homophobic political philosophy” from gaining protection.  On the face of it, therefore, the hypothetical BNP member would not be able to claim under these Regulations.  This is, of course, a fairly new area of law and that particular issue has not yet been tested.   

Please contact me with any comments or details of any other cases that take this point further, or if you simply need advice on your own position.  I can be contacted on 0207 464 8433 or via email at michaelscutt@dalelangley.co.uk

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By Michael Scutt, 03/11/2009 10:00 am

I’m writing this on the train coming back from the latest Tesco Law workshop run by Lammore Consulting Ltd.  The session was attended by solicitors from a range of firms over the West Midlands and consists of a presentation by me on the Legal Services Act 2007 (aka Tesco Law) and a very stimulating session by Mark Blackmore (from Lammore) on the theory of sales and marketing.

The main concern that most delegates have is that they won’t be able to compete on price with the likes of Tesco, the Co-Op and other retail or banking giants.  Mark’s session, involving a great exercise with four tubes of toothpaste (if you want to know more you’ll have to attend one of the courses), is to demonstrate that price isn’t the only issue that affects consumers.  Indeed, if a price is too low, it can be just as off putting as if too high. The message is clear: lawyers are salesmen and to succeed in the future we will need to recognise and apply the “Single Sales Principle (SSP)”. 

The SSP has three identifiable elements;

1.  Your customer’s “Compelling Need” for a product PLUS
2. A “Credible Solution” from a supplier, PLUS
3. “Perceived Value” as an outcome

EQUALS a sale.

It is, perhaps, easier said than done but clearly has application to the sales of professional services just as much as the sale of a product.  How to implement SSP in one’s own practice?  For most lawyers, the first element isn’t likely to be a problem: most legal services are distress purchases.  The problem, instead, is to promote oneself at the second stage of the equation.  In my view the way forward is to build one’s own reputation – one’s own brand.  How you do that is a career all in itself, but social media certainly gives more people the ability to project themselves and their businesses, which is one reason why I write this blog.

But there is more to it than that.  Even if as a practitioner you can build your brand, demonstrate excellence and provide a quality service, there is (in my view) still one massive piece of jigsaw missing: affordability of legal services, the need to demonstrate the final part of the equation “perceived value”.  Clients want to know how much a piece of work will cost, whereas the solicitor doesn’t want to quote a fixed price unless s/he knows that it will cover all the work.  Therein lies the age-old fundamental problem – how to get beyond hourly rates? Charge a percentage of compensation perhaps?  It can be done in the ET and conveyancers used to charge a percentage based on the value of the house, just like estate agents still do, (and they don’t take on any risk in the transaction, unlike the solicitor).  Increasingly sophisticated IT solutions that provide much routine advice can be one answer: see Tessa Shepperson’s excellent website at Landlord-Law.  She provides an opportunity for both landlords and tenants to become members of her site and access documents and then, if that isn’t sufficient, they can instruct her for specific advice on their situation.

However, that still gets us back to the problem of how you price a potentially open-ended service.  Will Tesco-law be able to resolve that problem?  Or will they just be able to absorb more hits than a law firm?  That’s no better business for them than it is for a traditional law firm. In my experience, from working at a personal injury “factory” style law firm, the bulk provision of legal services doesn’t work for everyone. People don’t shop just on price but on a whole range of factors. Will a small, specialist, law firm that offers a credible solution and perceived value be able to succeed post 2011? Yes, I believe so.

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By Michael Scutt, 28/10/2009 10:10 pm

This is from yesterday’s Telegraph.  Marvellous.  Bad news for employment lawyers, of course.

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By Michael Scutt, 27/10/2009 2:01 pm

The “subscribe by email” feature hasn’t been working since the redesign, but it should now do so.  I do apologise if anyone has been trying to subscribe and getting very frustrated as a result.  Please try again!

One of the side-effects of blogging that isn’t often mentioned is the effect it has on one’s IT knowledge.  I think I’m beginning to understand what’s going on “under the bonnet”, as it were.

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By Michael Scutt, 27/10/2009 10:30 am

Over on my Linked-In profile I’ve set up a poll asking which of the four following features you would most seek in your solicitor;

- Accessibility

- Affordability

- Ability, or

- Affability

You can link to the poll from here

I look forward to seeing the results in due course.  Feel free to leave a comment below.

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By Michael Scutt, 23/10/2009 4:42 pm

Well, would you believe it?  In the week that I gave a talk at the City Business Library about contracts of employment (see here for my slideshare presentation) and the differences between employees, workers and the self-employed, I came across a case in the Employment Appeal Tribunal (EAT) which discussed all these issues.  It is an important issue because the answer to the question will determine what legal remedies are available to the individual.

In the case of Clarkson v Pensher Security Doors Ltd [2009] UKEAT 0107_09_1606  the Applicant undertook the bulk of the electrical work for the Respondent company.  He provided most of the tools he did and although he was given jobs to do he was not told how to carry out those jobs.  He was paid hourly and kept to hours stipulated by the Respondent and, importantly, there was “mutuality of obligation” between the parties – i.e. the Respondent would supply work and Mr Clarkson would undertake it.  However, he took no part in the running of the company or attended company meetings or appraisals and was not paid when he didn’t work. He did do some, limited, work for On the facts it seems like he was, at least, a worker (which is a broader category with fewer legal rights).  However, it was finally held that Mr Clarkson was neither a worker nor an employee and, instead, he was an independent contractor or “business undertaking”.  This meant that his legal rights against the company were confined purely to the terms of the contract between them (and it isn’t clear whether that contract was in writing or purely oral).  In other words he had no right to apply to an Employment Tribunal for any remedies that might otherwise have been available to him. 

This case demonstrates the need for businesses and workers/employees to enter into clear written agreements that set out their status and thus, hopefully, avoid the need for expensive and time consuming litigation that these parties found themselves embroiled in. 

If you need assistance or advice on these issues please do not hesitate to contact me on 0207 464 8433 or at michaelscutt@dalelangley.co.uk

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By Michael Scutt, 20/10/2009 11:23 am

In a bit of a departure from normal practice here I am uploading a copy of a presentation I gave at the City Business Library today. It may be a bit cryptic if you weren’t there to hear it and please contact me if you require further assistance or explanation.  You can find it at my Slideshare site, which is here;

http://www.slideshare.net/michaelscutt

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By Michael Scutt, 15/10/2009 9:00 am

Or, to be more precise, and rather less brutal, when did your employment terminate?  In technical employment law parlance, what is the “Effective Date of Termination (EDT)”?  This is a crucially important date in cases where employer-employee have fallen out because it is from the EDT that time limits for issuing proceedings at an Employment Tribunal (ET) are calculated. 

An employee usually has three months in which to issue his/her proceedings – e.g. for unfair dismissal or for discrimination claims.  Problems can arise when the papers commencing the claim (called the ET1) are lodged close to the three (calendar) month less one day limit.  The ET is very strict about accepting claims outside the three month limit and will only do so if it was not “reasonably practical” for the proceedings to have been lodged within that time.

A recent Court of Appeal case, called Gisda Cyf v Barratt, was argued over this issue.  The Claimant’s employers informed her of her summary dismissal on grounds of her “inappropriate conduct” by RECORDED DELIVERY letter on 29^th November 2006.  The letter was signed for by a relative but the Claimant herself was away from home for a few days.  She did not read it until her return home on 4^th December and she did not issue her ET1 until 2^nd March 2007.  An issue then arose as to whether she was in time or not.  On the basis of the date of the letter and delivery to her, she was not.  But, if her EDT was the date she read it then she was.  The CA took the latter view on the grounds that the employee had to be certain of the EDT.  Therefore she could pursue her claim and the employers had to expend time and money in defending it.  The decision was not unanimous though:  it was a three man court and the result was 2-1 in favour of Ms. Barratt.

This being the law, you wouldn’t expect the same rule to apply on constructive dismissal, i.e. where the employee resigns and leaves there and then.  The EDT in that case is when the letter is physically received by the employer (such as the post-room) and not the relevant line manager or HR officer. 

Resignations by fax will take place when the fax is received by the employer’s fax machine and not when subsequently read.  The same rule will presumably apply to email transmissions because the common thread running through these cases is that the employee must have certainty of when the EDT is and this can only be achieved through reliance on the date of delivery not date of reading.

The moral for employers here is don’t dismiss purely by way of a letter.  Get the employee into a meeting, give the news orally and then confirm it in writing, preferably by handing the letter to the employee at the same meeting.  The lesson for employees (and their advisers) is don’t leave issuing proceedings until the last minute.

As ever, if you need advice on any of these issues, call me on 0207 464 8433 or email me at michaelscutt@dalelangley.co.uk

(The ELA Briefing magazine (Vol 16 No. was invaluable in preparing this post.)