On the subject of compromise, there must be an even more uneasy atmosphere around the Cabinet table following the front-page report in the FT today saying that Vince Cable cannot support the government’s reforms of employment law.

Saint Vince is reported as saying he will resist “bonkers” proposals over “no-fault dismissals”.  Mind you, he was ready to go to war with News International over their proposed purchase of BSkyB until he shot himself in the foot.  Cable is also reported as having had conversations with Ed Miliband; so has Nick Clegg.  About what?  We’re not told apart from a vague reference to “important areas of public policy”. What’s happened to collective Cabinet responsibility?

The Cabinet seems to be lining up for a dispute between the Tories and the Lib Dems over the Beecroft report, with the Prime Minister apparently  in favour of the reforms.  I wonder if the Beecroft report might prove to be the Achilles heel of this government. The FT makes the point, which has also been echoed on Twitter this morning, that the author of the report, Adrian Beecroft, is a substantial Tory donor. Party funding and government policy do not sit easily together.  The Government has already commenced a “cash-for-access” enquiry, led by Tory Peer Lord Gold following its co-Treasurer Peter Cruddas’s enlightening revelations last month saying that £250,000 could buy you dinner with George Osborne and David Cameron.    Whether the Gold enquiry will gain public confidence as being an independent and fair investigation of the issues seems unlikely and was recently described as being a whitewash and “rather like asking the Kray twins to investigate gangland crime in the East End”.

It will be interesting to see to what extent the Lib Dems are prepared to oppose these proposals. Reform of employment law was in the Queen’s Speech, which presumably had the support of both Coalition partners. However, the Conservatives are in a weak position at the moment and they surely won’t want to gift the Opposition a chance to say that a contentious issue like employment law reform is being decided by Tory donors: cash for access writ large, in other words.  Having said that the Lib Dems are in an even weaker position following the caning they took in the local elections, so surely they won’t want the Coalition to fail at this stage?

Just maybe the Beecroft report might get filed away quietly somewhere, or be substantially diluted.

No related posts.

Vince Cable: In the Eye of the Storm originally appeared on Jobsworth by Michael Scutt on 21/05/2012.

The only Hacker I've ever liked

Hackers!  Don’t you just hate them?  Late last week a couple of people got in touch to say that a search for this blog  not only showed my posts on employment law but also an invitation to buy viagra.

Now, whilst times may be hard and pressure on solicitors’ fees ever more intense, I haven’t yet diversified into selling viagra, or any other such products, to supplement my income.  I suppose in these post-ABS days there’s no reason why one couldn’t of course, but it’s not really the done thing, is it?

So, I have spent some time (and money) installing and upgrading some security for the site.  I have run scans, altered passwords and done some other stuff which, I hope, means the site is now clean.  However, a Google search still produces the message “this site may be compromised”.  I hope it isn’t. I don’t think it is but, being a lawyer, I can offer you no warranty, representation or undertaking that it is.

It’s been a wake up call and thanks to all those people who let me know there was a problem and to Rick Cooper and Laurie Anstis for practical suggestions to solve the problem.

Related posts:

1. Compromised Agreement?

Warning: This Site May be Compromised originally appeared on Jobsworth by Michael Scutt on 21/05/2012.

It didn’t meet with the same critical acclaim last week that the film of  nearly the same name – The King’s Speech – did a few months ago. No one seemed very impressed by it, little detail was provided and what we have been promised has been mooted already.  The business lobby were underwhelmed by the lack of specifics. The Government’s public discomfort continued as they managed to please no one. Business didn’t like the lack of detail and everyone else seemed underwhelmed. Ed Miliband had a good day, saying,

“No change, no hope – that is the real message of this Queen’s Speech.“

 and

“In two years, you have gone from David Cameron to David Brent. That’s the reality“

Rather good, but isn’t it a rehash of Vince Cable’s memorable description of Gordon Brown as Mr Bean a few years back?

David Brent being, of course, the line manager from hell.  The sort of person who would give lawyers endless work if he were conducting protected conversations, or trying to conciliate disputes.

 It’s not surprising; the same old tired claims about needing to reform employment law to stimulate the economy.  So, we’ll get the Enterprise and Regulatory Reform bill, which will require all Claimants to lodge their claims with ACAS and consider early conciliation.  The Bill will also streamline employment tribunal procedures;

“Legislation will be introduced to reduce burdens on business by repealing unnecessary legislation.”

Expect the measures that have been trailed and consulted on already to be in it: ET issue fees, protected conversations, maybe even abolishing unfair dismissal claims for small businesses.  The Beecroft report is said to be back in favour. Yawn.

The new Bill will also ring fence the retail banking functions of investment banks to protect us from the worst excesses of so-called casino capitalism. And, on a day when Commerzbank lost its case against 104 of its employees, the government will legislate to restrict bankers’ bonuses.

It’s not all about restricting or removing rights though. A Children and Families Bill will extend flexible working for parents. As a parent myself I welcome anything that makes life easier for people trying to balance work and home life, but if you want to find an area of employment rights that causes employers, especially smaller businesses, a headache on a daily basis it is flexible working, not unfair dismissal or discrimination claims. Even so, it’s to be welcomed.

 The Commerzbank decision was an interesting one. I have not seen the Judgment yet but it seems that Mr Justice Owen made the right (but nonetheless still brave) decision to hold that Commerzbank must honour its contractual obligations to those employees to whom its predecessor Dresdner Kleinwort had promised bonuses. The Bank was not able to rely on the downturn in the economy and the worst results in its history to justify a “material adverse change” to allow them to vary those contracts. The bonuses due ranged from £12,000 to £2mn. In the end it seems to have been decided on straightforward contract law principles and fact rather than novel legal principles.  Commerzbank were not able to persuade the Judge that the bonuses were discretionary. The Guardian reported a Commerzbank spokesman as saying;

“The main argument revolves around whether the announcement on 18 August amounted to a legally binding agreement. It is the bank’s submission that there is every prospect that the court of appeal would come to a different view on this matter”

So, it’s not over yet. Will there be “copycat litigation” ?  Probably, but this was a dispute which had its origins in the 2008 financial crisis and the landscape is different now, due to the FSA’s Financial Remuneration Code which restricts the size of the largest bonus payments. Undoubtedly though, more scrutiny will be put on what is said by line managers when the “B” word comes up.

No related posts.

The Queen’s Speech originally appeared on Jobsworth by Michael Scutt on 15/05/2012.

In this latest podcast I’m joined by Philip Henson, Partner at Bargate Murray Solicitors to chew over the new and proposed reforms to employment law and the case of Seldon v Clarkson, Wright & Jakes.

Health Warning:  This podcast is just an informal chat between two blokes with nothing better to do than talk about employment law one evening.  It doesn’t constitute legal advice in any way.

Related posts:

1. Podcast#3 – What’s coming in 2012?
2. Podcast#1
3. Podcast#2

Podcast#4 – Philip Henson of Bargate Murray originally appeared on Jobsworth by Michael Scutt on 04/05/2012.

Last week it was reported that BA Air Steward Rothstein Williams, a Seventh Day Adventist, was not permitted to pursue his case for religious discrimination beyond a pre-hearing review at Reading Employment Tribunal. He complained that a female colleague had called him “darling” after asking him to collect some glasses during a flight.  He took offence and sued.

Mr Williams was also upset because he thought he was harassed for studying the Bible at work.

The Tribunal dismissed his claims, accepting BA’s explanation that “darling” was a convenient epithet to use because there were so many flight crew that they couldn’t be expected to remember everyone’s names. How about name badges then?

You can call him Darling

How Mr Williams thought being called “darling” was offensive to his religion isn’t clear, but as the Air Stewardess in question routinely called everyone, male and female, “darling”, a claim for sexual harassment or discrimination was probably also doomed to failure.

The Guardian Work Blog carried an interesting article on this subject by employment lawyer Philip Landau last week.  In it Landau quotes from a couple of surveys on the use of terms of endearment in the workplace.  One is a survey by Hiscox which reported that 50% of employees in the 25-34 age group had no objection to the use of the term “pet” or “love”, although these findings were contradicted by the OnePoll survey, from which he also quotes, saying that female employees hated being called “love” most of all, followed in order by “darling”, “babe”, “mate” and “hun” and roughly 75% of females surveyed thought such names were unacceptable. 25% said it made them angry. I thought about trying it out here on my female colleagues, in the interests of research, but decided against it as I’m fond of my front teeth.  I once called Mrs Jobsworth “hun” and only just managed to escape with my life.

So wasn’t Mr Williams’ anger justifiable?  Women often refer to their female co-workers as “hun” or “darling”, so isn’t that objectionable too? Between women it is less likely to be objectionable because there is less likely to be any sexual connotation or implication behind the words.  Context is everything and it isn’t satisfactory to say we all getting too politically correct.

Would anyone want to go back to the environment shown in Dominic Sandbrooks’ programme “The 70s” which was on BBC2 last night? For anyone interested in the social and political climate around the time of the introduction of the Equal Pay Act and the Sex Discrimination Act it makes fascinating viewing. On New Year’s Eve 1975, ITV’s end of year celebration programme was the Wheeltappers and Shunters Club hosted by none other than Bernard Manning.  Can anyone imagine Bernard Manning being suitable for prime time TV entertainment now, allowing of course for the obvious drawback, of course, that he is dead, but you know what I mean.    My only criticism of the series is that Sanbrook tries to pack too much in to each episode.

Finally, a challenge for you, below are two photographs.  Spot the difference and tread warily.

A Minefield

A Workplace

No related posts.

Don’t Call Me Darling originally appeared on Jobsworth by Michael Scutt on 01/05/2012.

Given all the rain we’re having at the moment it may seem inappropriate to write about the Sun, but come the 1st September I hope he’ll have his hat on and if not playing, at least putting in an appearance. For on that day I will be cycling, walking and canoeing for charity in an event called “Race the Sun” in the Lake District.

Thirlmere from the top of Helvellyn

It’s a 50 mile cycle ride, a stiff walk up Helvellyn (2nd highest mountain in England) and a short, but no doubt taxing, canoe around Thirlmere. The race starts at dawn and you have to be back by sunset, hence racing the sun. It’s not the cycling or the hiking that concerns me so much as the canoeing, as it’s something I haven’t done much of. Thankfully all but five miles of the biking is on road.

Like most of these events, it is a fund raiser for charity, in this case Action for Medical Research (AMR), which funds research into medical treatment for babies and children.

I’m doing it as part of a team – “Back B4-9” – and we need to raise £2,000 to be able to take part. My team mates are Nick Lofthouse, Warwick Wyatt (a personal trainer, so he should be ok doing it) and Erol Osman. We all attend a breakfast networking club called, funnily enough, B4-9. The name chose itself really…

Back B49 team to raise £2000 for charity. http://t.co/wXMV1YSWThe team is @WarwickWyatt @NickLofthouse @michaelscutt and Erol Osman

23/04/2012 11:18 am via Twitter for iPhoneReplyRetweetFavorite

@B49Business

B49 Business Network

 I have a sponsorship page both team and personal – click here – and, of course, any donations you care to make will be gratefully received. My good friend and colleague Jill Watson, was kind enough to kick off the sponsorship. Jill is due to give birth shortly – so I suppose I shouldn’t complain about the pain of a nice cycle ride in the country.

I’m determined to put in a respectable showing come race day so have been building up the training. Yesterday the team got wheeling over to Hemel Hempstead and return again, a distance of approximately 35 miles, with a couple of steep hills en route. I never knew Harpenden was so hilly; it’s like the Alps, only with more BMWs and less snow. I had my usual puncture, the third in as many rides: I’m getting quite adept at repairing them now.

 It’s the canoeing I need to work on. Is there anyone out there who could lend me a kayak for, say, 6 months?!  I’ll do an update from time to time on our training.

We need to raise £2,000 so we can do it, so all donations will be very gratefully received so, please, if you can, Back B4-9!

Related posts:

1. Race Discrimination and Redundancy

Race The Sun 2012 originally appeared on Jobsworth by Michael Scutt on 24/04/2012.

Employers in the UK might think are vulnerable to any manner of speculative or vexatious claims from employees, however they should be grateful they aren’t in Australia, where a recent case will have the Institute of Directors and Tory MPs spluttering into their copies of the Daily Telegraph.

 Roll on Friday, the purveyor of legal news and salacious gossip, carried this story (which also featured in the Australian Telegraph) about an HR executive required to travel for a meeting and to stay overnight in a motel.  During this overnight stay she had sex with a male acquaintance (not a work colleague), which led to her sustaining facial injuries and psychiatric injury from a falling light fitting.

She sued her employer on the basis that the injuries had been sustained “during the course of her employment”.  RoF reports the rationale for this thus;

“Justice Nicholas stated that she didn’t have to show that her employer had encouraged or induced her to have sex, “If the applicant had been injured while playing a game of cards in her motel room she would be entitled to compensation“. And as sex is a lawful activity, she should be compensated for her injuries.”

I’m wondering if the court was asked to consider whether any degree of contributory negligence applied to her for not checking that the chandelier was safe before she started swinging from it.

Thanks to @taruntawakley whose tweet brought it to my attention.

Woman injured having sex on work trip was conducting activities in course of employment and compensated http://t.co/pgTDVh2b #ukemplaw #hr

20/04/2012 5:11 pm via webReplyRetweetFavorite

@TarunTawakley

Tarun Tawakley

Related posts:

1. One million suffering from brain injuries in the UK every year

Employer Liable for Employee’s Injuries Sustained During Sex Session originally appeared on Jobsworth by Michael Scutt on 21/04/2012.

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What is an intern?  There is no legal definition that I’m aware of, but words like “skivvy”, exploitation, and, less pejoratively, work experience come to mind when discussing internships.

Although there are negative connotations, an internship can be a good way for a person post-graduation to overcome the hurdle of getting the first job without having any experience (and you can’t get that work experience without having a job). Graduate recruitment is as hard as it has ever been and anything that helps people get into work should be welcomed. But internships aren’t above criticism.  An internship usually involves working for no “proper” salary or getting paid expenses only.   However, an intern may be deemed to be a “worker” and thus be entitled to receive the minimum wage, and holiday pay. Some roles, such as students on a “sandwich” course doing a job lasting for less than  12 months during their first degree, or voluntary workers or apprenticeships are exempt from the NMW.

The key aspects of an internship are that they

-  are used in the graduate, white-collar jobs sector

- are voluntary, with payment of expenses but not salary (usually)

- are designed to provide training and experience

- may be limited to a particular task or project

- and limited in duration (the longer they last the more likely it is that the intern will be deemed a worker or perhaps even an employee)

But there is scope for exploitation and internships can be controversial because interns have few legal rights. Effectively they are volunteers in all but name. Volunteers are not entitled to bring claims for unfair dismissal and, because they get nothing more than expenses or a subsistence allowance they aren’t classified as “workers” and thus they can’t bring discrimination claims. If a salary is to be paid it must be at least equivalent to the minimum wage.

An example of that came up in May 2011when Keri Hudson, an intern at the My Village website, succeeded with her claim that she was entitled to at least the minimum wage and holiday pay. She had been in charge of a team, writing copy for the website and recruiting other interns for two months. According to the report in The Guardian she had been promised pay but it never materialised.

The law is rather murky in this area. Some say that there is no such concept as an intern known to English law.  Employers who take on interns are at risk of facing claims if they treat them like cheap expendable labour instead of offering a proper training opportunity. Recently graduated people desperate to get on the jobs ladder are ripe for exploitation and few will want, or be able, to take a stand like Keri did. The key to running a successful intern scheme must be mutual respect, not exploitation.

No related posts.

I Turn, You Turn, We Intern originally appeared on Jobsworth by Michael Scutt on 20/04/2012.

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Having an accident at work can bring serious consequences.  As well as the pain and suffering that will inevitably accompany an injury, there may be significant other losses as well, such as loss of earnings or medical treatment fees.  If you can prove that the employer was at fault then it may be possible to recover work accident compensation.

 Every employer owes a duty of care to its employees to provide them with a safe system of work. Difficulties can arise in proving that a breach of the duty of care was negligent.   To assist employees there are a number of statutory duties laid down which impose obligations on employers.  For instance, the Management Health and Safety at Work Regulations 1999 require all employers to carry out a risk assessment of every aspect of the work environment and activities. The Workplace (Health, Safety and Welfare) Regulations 1992 set out minimum standards to be adhered to at work.

The Manual Handling & Operations Regulations require that all heavy lifting tasks be avoided or, if they can’t be, that effective training and measures be put in place to prevent injuries occurring.

The Provision and Use of Work Equipment Regulations impose a duty of strict liability on an employer if an employee is injured using work equipment.  This means that a Claimant only has to prove that the injury was caused by the work equipment and not that the employer was at fault in any way.  For an employee that is a considerable boon because it can often be difficult to prove negligence.

Don’t forget as well that an employer may be liable for the actions of a fellow employee, so if the injury is caused by a colleague’s carelessness or fault it may be possible to hold the employer vicariously liable for the other employee’s negligence.

The key to obtaining compensation is to take specialist advice.  Accidents at work can be complicated and you need someone who is familiar with the law.

Related posts:

1. Accidents at Work and on the Roads

Compensation for Workplace Accidents originally appeared on Jobsworth by Michael Scutt on 19/04/2012.

According to this article in Newstrack India there is a growing trend in the USA for employers to ask new potential new recruits in job interviews for their Facebook log-in details.   It may well not be illegal to make the request (although it may breach Facebook’s rules) but why on earth would an employer want to access an employee’s private Facebook account? The information revealed could well prove to be a poisoned chalice.

Mate, don't drink it.

At first glance the employers making these requests in job interviews probably think they are being very smart, as it will allow them to know what the employee is writing about the company they’ve applied to (or other job applications they’ve made) or, wider still, what sort of person the candidate really is.  In other words do they post photos about alcohol or drug use (and abuse) or boast about their sexual antics at parties?

So what if they do?   Those sorts of status updates may well look unwise once the hangover has subsided, but they shouldn’t be used as part of the recruitment process, or subsequently.  An employee who is asked to hand over their log-in details is well within their right to refuse and, if the prospective employer therefore decides not to offer them the job, the candidate may well consider they had a lucky escape. Who would want to work for a company that not only wants to know about your private life, but intends to make a value judgment on what they see there?

And that is why employers shouldn’t do it.  What do you do with the material you discover?  Access to a person’s Facebook page may well disclose their age, marital status, whether they have kids, and their sexual orientation.  If they are subsequently rejected for a role, even if it is because the employer doesn’t like the candidate’s support for Accrington Stanley or their choice of leisure wear, let alone their habit of getting drunk on a Sunday night and pulling a sickie on a Monday morning, you can be sure that a claim for discrimination will arise if the employer could have gleaned any information relating to a protected characteristic under the Equality Act.

As Thomas Gray wrote in 1742

Where ignorance is bliss, ‘tis folly to be wise.

Update – Tuesday 27th March – The Information Commissioner has warned employers against requesting Facebook log-in details – see this report in The Guardian. 

Related posts:

1. 40% of UK Employees Criticise Their Bosses on Facebook and Twitter
2. Facebook “Joke” Turned Sour: Why Employers Need To Take Note
3. Employer was Justified in Sacking Employee for Comments on Facebook

Why Should Bosses Want Employees’ Facebook Details? originally appeared on Jobsworth by Michael Scutt on 26/03/2012.