Employment Law Explained

UKBR#11 – Take Five

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 UKBR#11   Take Five   ukblawgroundup

Take Five – Dave Brubeck

The pattern in the last ten UK BlawgRound Ups has been to take a look at the UK blawging scene, writing about the bloggers blog blog blogging away. In UKBR#10 Charon QC wrote the most comprehensive review of UK blawgs that we’ve had so far, comprising four episodes and podcasts and covered just about every Blawg that there is or ever has been. There would be little point in trying to repeat the exercise after such a short period of time or hope to do so with Charon’s level of thoroughness and care.  Instead, in this my third UKBR, I want to take a more in-depth look at just a few blogs that I particularly like. Take Five, and it gave me an excuse to link to the first jazz album I ever bought.

Before getting to the blawgs though, I want to give a quick mention to Julian Summerhayes, for some perspective on blogging. Julian is a solicitor turned consultant who spends enormous amounts of time blogging on subjects like, well, blogging and social media.  Julian extols the need for lawyers to pursue excellence in the practice and to embrace new attitudes to working.  Back in the summer he wrote Everyone wants a Blog and warned against blogging just for the sake of driving sales; you will be disappointed if you do.  There is no “right way” to blog, but Julian highlights two necessary components

the most important aspect is to write with passion and emotion. Even where the content is different, if the words are dead then even the ‘razzle dazzle’ of social media won’t rescue your insipid effort.

The blogs I’ve looked at for this RoundUp all have passion and emotion or display content of the highest quality.  They inform, educate or entertain the reader, in some cases all at the same time.

The first of these is A Range of Reasonable Responses, subtitled “the ravings of an employment law anorak”, by barrister UKBR#11   Take Five   ukblawgroundup turned writer/editor/consultant Darren Newman. Employment law is close to my heart, being my area of practice and the subject of this, my main blog.  It is thus of more actual day to day importance to me than, say, a blog about Human Rights or Housing, and Darren’s blog is useful.  The title, as any employment lawyer will know, has resonance, being the main test for deciding whether an employer’s actions in dismissing an employee were, well, reasonable.  If not, then the dismissal is likely to have been unfair.  However, there is more to ARORR than that, because the purpose of the blog is not just to write about the latest happenings in UK employment law, but to explain it in the light of the mis-reporting of the mainstream media. Darren started the blog in March this year because

Like many people in the employment law world I get frustrated when I read about my subject in the mainstream media. Nearly everything I read is simply wrong! Partly the problem is that the subject is quite technical and the journalists writing about it don’t have the time, the expertise, or the inclination to get it right. Partly, however, the problem is that employment law is a political football. It stands at the centre of the bosses v workers, capital v labour, rich v poor divide and is frequently pressed into service by those who have a political agenda on one side or the other.

He therefore tackles those issues that hit the headlines.  In his words again

In this blog, my plan is to explain and comment on the employment law issues being raised in the news. This may help some people understand what is really going on, but chiefly it should give  me something more constructive to do than sit at my computer shouting at the Mail Online or the Daily Telegraph website.

Both of those being perfectly normal and noble activities, of course. And it also gives him plenty to write about.  Topics he has covered so far include the reform of employment laws, Boris Johnson’s call for tougher strike laws, madness in Brussels, and lots on equality and discrimination.  I particularly liked his blog post It’s Not about Banning Crosses, dealing with the Eweida and Chaplin cases.  It’s an excellent analysis of both cases and explains that the issue wasn’t the wearing of crosses but the policy of their employer on uniforms and what could be worn with them. In Eweida’s case she asserted that being prevented from wearing her necklace, which had a cross on it was less favourable treatment of her because of her Christian beliefs. The issue has been taken up by the Church and other Christian groups as an attack on Christianity.

In Chaplin and Eweida the issue was not that the employer banned crosses. The ban was on any necklace worn in a way that was visible (in Eweida’s case) or which could be grabbed by a patient (in Chaplin’s case). In each case, as far as the employer was concerned, it didn’t matter what was at the end of the necklace.

Had the necklace not been visible she could have worn it.  Eweida, like Chaplin, was seeking special treatment for wearing her necklace. In Chaplin’s case she wasn’t allowed to wear a necklace for health and safety reasons (which is probably a good justification for a policy) but, as Darren points out Eweida  should have won her case (of indirect discrimination) because BA may have struggled to justify why a necklace couldn’t be worn with the uniform.

The most interesting aspect of this blog post though is Darren’s comments on the implications of a Eweida/Chaplin victory in the European Court of Human Rights

Human Rights law is different from normal discrimination law. It has different principles and a different case law history. The Mail seems incensed that the UK Government is arguing that people could choose to resign if their religious beliefs conflicted with the needs of their job. But if we are dealing with human rights law then surely that is a relevant consideration? To what extent should human rights law restrict contracts of employment freely entered into? Normally it is papers like the Mail who are arguing that the human rights agenda has gone too far. It’s a little odd to see them so sympathetic to cases that rely on overturning previous case law and extending the reach of human rights law in the workplace.

This is blogging at its best: explaining not only the issues behind the headlines but what it all is likely to mean in reality. The collision between employment and human rights is a fascinating area of law.

 UKBR#11   Take Five   ukblawgroundup That takes me nicely on to my next blog, the highly-regarded UK Human Rights Blog (UKHRB), written by the barristers at 1 Crown Office Row. Human Rights law is probably just as newsworthy and controversial, if not more so than employment law. Since it was set up in 2010 UKHRB has been hugely successful, receiving 60,000 visits per month and being shortlisted for awards as well as being quoted by legal commentators and read by “leading lights in the human rights community”. Whereas Darren’s blog is written solely by him, UKHRB is written by many and is more of an online journal/resource than just an opinion forum. It contains a case law table with summaries of cases and also an explanation and history of human rights law. The blog itself is updated once or twice every day, in itself a major feat of co-ordination and planning. This becomes possible when several people are involved in writing and preparing it. It obviously helps that the authors of the articles are at the sharp end of human rights law themselves, which adds perspective and clarity, but having spent much time at my own firm trying to persuade colleagues to write articles, I know how difficult it is to get others to put finger to keyboard when the purpose is non-chargeable.

The purpose of the blog is

to provide a free, comprehensive and balanced legal update service. Our intention is not to campaign on any particular issue, but rather to present both sides of the argument on issues which are often highly controversial.

The unwritten reason, of course, is to showcase their knowledge and expertise and you probably won’t find a better example of a barrister-written blog than this one.

Cases don’t become much more high-profile or controversial than the Abu Hamza deportation case. At long last, Hamza’s case has been determined by the ECHR and there is now no legal bar to him being deported, having exhausted all legal remedies. Why did it take so long though?  The answer seems to be the complexity of the case, or possibly a large backlog of cases.  The blog post which really caught my eye though was Matthew Hill’s discussion of the alleged massacre by British troops of Malayan civilians in 1948 and his report on the High Court’s rejection of a request for a public enquiry into the alleged events in the case of Chong Nyok Keyu and ors v Secretary of State for Foreign and Commonwealth Affairs and another [2012]  EWHC 2445 (Admin). I am very interested in history but had never heard of these dreadful events before.   The case was an application for judicial review of the government’s decision not to hold a public enquiry,

The Claimants in the present case sought a judicial review of a decision by the Defendant Secretaries of State not to hold a fresh inquiry into the killings.  They argued that there was a duty under Article 2 ECHR (the right to life) and/or through the common law to investigate the killings, and that even if there was not, the decision to refuse an inquiry was unlawful on the grounds of unreasonableness and irrationality (failure to take into account relevant considerations).  Their claim failed on all counts.

The Claimants are said to be seeking an appeal to the Supreme Court and no doubt we shall hear more in due course, it being added to the growing list of abuses and subsequent cover-ups by the British police and security forces (think Bloody Sunday and Hillsborough for example). Massacres by the British Army aren’t supposed to happen: it’s something that the Nazis (Kalavryta, 1943) or the Russians (Katyn, 1940) do, yet this is clearly nonsense. British conduct in the Boer war led to atrocities, and again in the Mau Mau uprising in Kenya in the 1950s confirm that. Matthew’s conclusion is

Even if the High Court’s judgment stands, the Claimants will have achieved at least part of their purpose.  The most undervalued role of a public inquiry (and one not considered in this judgment) is to bring to public attention the documents, records and testimony concerning disputed events, and to invite critical scrutiny of them.  Litigation, and in particular the duty of disclosure on parties to an action, can partially replicate this process whether or not an inquiry is not forthcoming at the end of it.

The wider question is whether any good comes from a public enquiry and getting to the truth of what happened.  The recent report by the Hillsborough Independent Panel and the Saville enquiry into Bloody Sunday suggest that there is much to be gained from a full and proper enquiry and disclosure.  The problem for the Claimants in the Malayan case is do enough people care to keep the pressure up?

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Photoshop Politics by Dylan Jeavons

Apologies are in the news a lot at the moment with Andrew Mitchell, the Government Chief Whip at the centre of a storm over what he did or didn’t say to a Police Officer and the use of the word “pleb”. He did – according to the BBC.  The Alrich Blog has an indispensable guide to the social make up of the Cabinet, dividing its members up into plebs and patricians, as well as giving details of their occupations before entering politics. There’s a helpful glossary of key terms too

The original terms patrician and plebeian distinguished the elite quasi-aristocratic people of Rome from the important land-owning class. The definition of pleb in this piece is not the modern term of abuse for the vulgar lower orders but ranges from lower middle class upwards and those with working class backgrounds who have joined the upwardly mobile (not merely by becoming MPs).

Patrician is quite widely defined as the elite bourgeoisie and their adherents, covering sons and daughters of Anglican clergymen or Army officers, professional people as well as those with a little bit of noble blood in them (such as Cameron, allegedly, or Osborne or Villiers – obviously) – people who would mix happily on the lawn of a fine country house eating cucumber sandwiches.

Mostly we’re governed by Oxbridge–educated Patricians (but you knew that anyway), but did you know

Patrick McLoughlin is the only truly working class member of the Cabinet, having a working class background and having also got his own hands dirty.

I was a little surprised to see only six lawyers represented in the Cabinet; I would have guessed much higher. Could that be

 UKBR#11   Take Five   ukblawgroundup

Patrick McLoughlin – One of us?

one of the all time low figures?

Alrich also looks into the issue of whether you can be arrested for swearing at a police officer. As a general rule it would appear not, but it all turns on the facts (as usual). It seems there is a need to cause a police officer real distress and being as fairly hardened bunch that might be difficult.  However,

The Daily Mail interpreted this judgment as saying police were banned from arresting people for swearing at them. But in fact that doesn’t necessarily get Andrew Mitchell off the hook. It might be argued that, given his position and his ability, presumably, to make life difficult for the officers who offended him and given the possibility that he may have used a word that is far more unusual, insulting and personal than the standard f-word (viz “pleb”), he may indeed have caused real distress to the police. The issue is the context as much as the words. One officer’s log also says onlookers were shocked. So evidence of real distress, the case of Harvey suggests, is a significant matter that could get the perpetrator into trouble. That is why the “pleb” issue is so crucial to Mitchell personally and legally as well as politically.

Perhaps prosecutors could learn from this example he cites,

One case, dimly remembered from 30 years ago at a north of England magistrates court, involved some ne’er-do-well confronted by a police officer who then said “Miaow” to the officer’s police dog. Insulting though it was, the dog wasn’t bothered and it could not provoke illegal violence from an officer, so “blemishing the peace” was used.

I like the Alrich blog (thank you to H Carr for directing me to it). It covers a wide range of topical legal issues with humour and incisive analysis – have a read of his post on whether Julian Assange should be prosecuted for treason for instance.

The fourth Blawg I like is John Flood’s Random Academic Thoughts – RATS. John writes posts that always seem to be highly topical yet succinct.  His latest called Tesco Law Forces Decline in Partner Numbers is a prime example of this. The number of partner roles in law firms is diminishing as law firms seek not to promote younger lawyers to partnership because of the uncertainties caused by the Legal Services Act (and perhaps the recession as well?).  There may be a rush into in-house positions or even into ABS for those solicitors who don’t “make” partner.  The other side of this, of course, is that partnership is no longer an aspiration for many younger lawyers, so maybe there won’t be that many disappointed wannabes harassing recruitment consultants?

RATS is also good because of John’s use of humour – his own comments, cartoons and photos.  For instance, his post on barristers’ clerks made me laugh, as did this cartoon on the nature of male-female relationships.

 UKBR#11   Take Five   ukblawgroundup

BabyBarista by Alex Williams

Some of the best legal cartoons around are to be found on Tim Kevan’s BabyBarista blog (or is it a website?  Who cares?).  Many people will be familiar with the dastardly BabyBarista from Tim’s two novels about his struggles at the Bar. They’re excellent and well worth reading if you haven’t yet.  The blog is good because it has regular updates from chambers (such as this one), a weekly cartoon by Alex Williams, who pens the cartoons for the books, and book reviews.   Like all good humour there is a hard dose of reality entwine din the joke.  For instance, the “Barrister’s way of sorrows” (which could be easily amended to cover solicitors as well) which I linked to above, describes the many professional pitfalls that a barrister will go through in his or her career, finishing thus

“But all the while you’re growing in character,” said OldRuin doing his Dumbledore routine once more. “It’s when you’re having difficulties that you’re not only learning the most about yourself but you’ll also find that it’s when you start to find it easier to put yourself into the shoes of the people you represent.”

I wish I’d realised that when as a naive, single, 24 year old  articled clerk I was giving advice on family (then known as matrimonial) law to people twenty plus years older than me with their lives in tatters.

Finally, I can’t finish this Round Up without going slightly off-piste from law and into the back garden.  Sheds have been close to my heart for a long time and I was delighted to discover 50 Sheds of Grey, which is a spoof of a mildly popular book, apparently.  If you haven’t come across the shed based version try this link – or better still this one.

'Harder,' she cried, gripping the workbench even tighter, 'Harder!' 'Alright,' I said, 'What's the gross national product of Nicaragua?'
 UKBR#11   Take Five   ukblawgroundup
@50ShedsofGrey
Fifty Sheds of Grey

There it is, five, or possibly six of the best. Thank you for reading.  UKBR#12 will be out at Christmas.

 UKBR#11   Take Five   ukblawgroundup

Michael Scutt, Employment Solicitor 

Employment solicitor with Crane and Staples, Welwyn Garden City, Hertfordshire. Blogger & writer. I like cycling, cricket, football and history.

One Response to UKBR#11 – Take Five

  1. [...] on September 26, 2012 by MikeScutt in Last Edition, Miscellaneous0 Comments – Leave a comment! Take Five, a review of five excellent blawgs,is out today at [...]

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