Good work?

Photo by Maarten van den Heuvel on Unsplash

One of the consistent themes of my blog has concerned an individual’s employment status in the work-place – or the very real difficulties associated with the lack of such status.

Section 230(1) of the Employment Rights Act 1996 defines an “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment.

As I have stated on more than one occasion, those who have a contract of service rather than a contract for services tend to be in a much stronger position legally speaking when it comes to a range of employment rights such as:

  • Paternity and maternity pay/leave
  • Statutory adoption pay/leave
  • Consultation rights in redundancy and TUPE situations
  • Entitlement to redundancy payments
  • Entitlement to sick pay
  • Minimum notice periods
  • Protection against unfair dismissal

The above are just some of the rights that people with employment status potentially can acquire depending on their length (or continuity) of service with their employer.

Those individuals with more insecure working patterns (e.g zero hours and/or casual workers) will almost never be in a situation to acquire such rights because it is almost always impossible for them to build up the necessary period of continuous service with the organisations to which they provide services. Typically, many of these workers are part of what has become known as the “gig economy” where the feature of employment contracts known as mutuality of obligation is absent.

Admittedly, the UK Government has attempted to begin to address the disadvantages facing “gig economy” workers by setting up the Taylor Review (which published its findings in July 2017). The final report made 53 recommendations concerning modern, employment practices:

https://www.gov.uk/government/publications/good-work-the-taylor-review-of-modern-working-practices

The UK Government’s official response to the Taylor Review was entitled “Good Work” and a link to this document can be found below:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/679767/180206_BEIS_Good_Work_Report__Accessible_A4_.pdf

The desire to extend workers’ rights seems to be something of a trend as, in April 2019, the European Union also ratified a new Directive with the working title Transparent and predictable working conditions in the European Union. This Directive (for the remaining EU 27 member states) will certainly give casual workers greater legal rights, but given the current uncertainty over the UK’s Brexit position, it remains to be seen if this measure will ever be implemented in this country (for more information, see “The gig economy” published on 19 April 2019).

One of the most significant new rights that the UK Government is proposing to extend to non-employees is the right to sick pay from day 1 of their service. It is calculated that this reform (if implemented) will benefit some 2 million workers.

A link to how the story was reported by The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.160719/data/9005291/index.html

Although employment law is a matter reserved to the Westminster Parliament, the Scottish Government has established its own Fair Work Convention with the express purpose of:

The Convention’s vision is that, by 2025, people in Scotland will have a world-leading working life where fair work drives success, wellbeing and prosperity for individuals, businesses, organisations and society.

A link to the Convention’s website can be found below:

https://www.fairworkconvention.scot

Copyright Seán J Crossan, 22 July 2019

A fishy tale …

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Alexander Boris de Pfeffel Johnson (or just Boris if you’re one of his legions of adoring followers) has been caught out yet (again) when pontificating about the UK’s unbalanced relationship with the European Union (see my previous blog “Private prosecutions” published on 29 May 2019).

The man most likely to be the next British Prime Minister May have thought that it was very clever (and theatrical no doubt) to brandish a kipper during a final hustings event of Conservative Party members in his pitch to win the Party’s leadership campaign.

By using the kipper, Mr Johnson wanted to make a broader point about the apparent interference of the EU in Britain’s laws. Now, I often teach students about the supremacy of EU law in the UK by dint of the fact that the Westminster Parliament passed the European Communities Act 1972, but if Mr Johnson had been one of my students he would have failed his EU Law exam.

Why?

Firstly, the kipper originated from the Isle of Man – which although a British Crown dependency – isn’t technically part of the UK and, therefore, not part of the EU.

Secondly, the food safety rules which govern items like kippers (which are deemed to be preserved rather than fresh fish) fall within the legislative competence of the UK – not the EU. Although the Isle of Man is not part of the UK, the UK Food Standards Agency would regulate the product since it is being sold in this country.

It would seem that Mr Johnson was either unaware of these facts or simply chose to ignore them.

Then again, Mr Johnson has a long track record of EU bashing from his time as a Brussels based journalist with The Daily Telegraph, so it would seem that he is doing what, for a long time, has just come naturally to him.

On a serious point, however, interventions by individuals such as Mr Johnson make it very difficult for the public to have an informed debate about the UK’s relationship with the EU. This is a state of affairs that we may come to regret given the predictions by the UK Office of Budget Responsibility of the grim consequences if this country crashes out of the EU without a proper and effective withdrawal agreement.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/eu-exposes-johnsons-kipper-red-tape-claim-as-nonsense-11765805

Copyright Seán J Crossan, 19 July 2019

Who’s the daddy?

Photo by Sandy Millar on Unsplash

Coming on the back of one of my recent blogs about gender reassignment (Gender Neutral? published on 25 June 2019), I spotted an interesting story appeared on Sky News today.

It concerns a legal action taken by Freddy McConnell, a multimedia journalist with The Guardian newspaper, to have himself declared the father of a child. There would seem to be nothing particularly significant about this. Mr McConnell is a transgender man and he gave birth to the child in 2018 after he had undergone gender reassignment and was no longer legally recognised as male.

When he attempted to register himself as the child’s father, the registrar refused to do this – hence the lodging of the legal action before the English High Court’s Family Division.

In terms of Section 7 of the Equality Act 2010, a person who has undergone or who is contemplating gender reassignment can bring a legal action under the Act if they believe that they have been subjected to unlawful, less favourable treatment (prohibited conduct).

The story has now hit the headlines because Mr McConnell had enjoyed anonymity while the action is still to be decided. He has now lost this anonymity because he participated in a documentary (partly produced by his employer) about his struggle to be named as his child’s father rather than its mother.

Other media outlets, such as The Telegraph, challenged the anonymity order as they argued that it infringed the right of journalists to comment freely on a matter of legitimate, public interest.

Human rights

Interestingly, the story then became not merely about transgender rights, but also one of human rights (in terms of the Human Rights Act 1998). There was a conflict between Mr McConnell’s right to privacy and a family life and the right of freedom of expression of journalists (Articles 8 and 10 respectively of the European Convention on Human Rights). On this particular matter, Mr McConnell has lost his attempt to remain anonymous as Sir Andrew McFarlane, President of the High Court’s Family Division has found in favour of The Telegraph et al.

It remains to be seen whether Mr McConnell will win his legal action to be named as his child’s father on the birth certificate.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/man-who-gave-birth-loses-anonymity-in-his-bid-to-be-registered-as-father-on-birth-certificate-11764821

A link to Sir Andrew McFarlane’s judgement can be found below:

TT v YY [2019] EWHC 1823 (Fam) Case No: FD18F00035

https://www.judiciary.uk/wp-content/uploads/2019/07/TT-anonymity-judgment-150719.pdf

Copyright Seán J Crossan, 17 July 2019

Bad medicine

Photo by Kendal James on Unsplash

A story which caught my eye over the last few days comes from the fair Canadian City of Toronto and involves misconduct dismissals. For a change, the dismissals do not involve social media misuse, but rather good old fashioned fraud.

150 members of staff working at a Toronto hospital were sacked for involvement in a sophisticated prescription fraud which was reportedly in the region of £3 million over an 8 year period. Defrauding your employer is, of course, an extremely serious breach of trust which materially undermines the contract of employment.

Interestingly, at this point, the Police in Toronto have not charged any individual with the crime of fraud – yet – but clearly the employer feels that it has sufficient grounds to go ahead with the dismissals.

I often to say to students that the employer merely has to have a reasonable suspicion that the employee has committed an act of misconduct. There is no need for the employer to demonstrate that the allegation(s) of misconduct meets the criminal standard of proof.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/150-toronto-hospital-staff-fired-over-prescription-scam-11760982

Had this story occurred in the UK, we would be talking about the matter in the context of Section 98(4) of the Employment Rights Act 1996. If employers can show that the reason for the dismissal of employees is justified i.e. on the grounds of misconduct (fraud), it will be a fair dismissal. As a point of good disciplinary policy, of course, employers should always follow the proper procedures when deciding to dismiss employees on the grounds of dismissal.

Copyright Seán J Crossan, 13 July 2019

Boxing clever?

Photo by Ryan Tang on Unsplash

In a previous blog (Indirect discrimination? published on 21 February 2019 and updated on 8 July 2019), I discussed the form of prohibited conduct known as indirect discrimination in terms of the Equality Act 2010.

Section 19 of the Equality Act 2010 defines indirect discrimination:

‘A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.’

Section 19(2) makes it very clear what it is meant by a discriminatory provision, criterion or practice in relation to a relevant protected characteristic:

(a) A applies, or would apply, it to persons with whom B does not share the characteristic,

(b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,

(c) it puts, or would put, B at that disadvantage, and

(d) A cannot show it to be a proportionate means of achieving a legitimate aim.

Employers and service providers (and other organisations) must be particularly wary when they apply a provision, criterion or practice (a PCP) to the general workforce or the general population. It may be the case that, in applying a PCP, that an employer or service provider unwittingly treats certain individuals with a protected characteristic (e.g. women, the disabled, older people, members of a faith group or people from certain racial or ethnic groups) less favourably when compared to other individuals who do not possess this characteristic. It is always open to an employer or service provider to show that although indirect discrimination has taken place, it can be objectively justified e.g. on national security grounds or health and safety reasons (e.g. Singh v Rowntree MacKintosh [1979] ICR 554).

So, bearing the above in mind, it was with some interest that I saw a story reported by the BBC about a policy imposed by the Welsh Amateur Boxing Authority that all boxers have to be clean shaven in order to participate in matches. This rule is being challenged by Aaron Singh, who is a member of the Sikh community. Singh is claiming that the rule prevents him from boxing. As outward manifestations of their race, religion and culture, many Sikh men will grow beards. Especially religious males in the Sikh community will also wear a Dastar, pagri or pagg (forms of headwear signifying religious and cultural observance). A Kirpan – a ceremonial dagger – will also be carried by many observant Sikh males. Both male and female Sikhs will also choose to wear iron bangles and bracelets (the Kara) which have both religious and cultural significance.

If you are unfamiliar with the Sikh religion, you can access the video below for more information:

https://youtu.be/SZYhxdeTPts

You can also find a link to an article below about Sikhs which was originally published in The Independent:

https://www.indy100.com/article/sikhs-face-discrimination-get-mistaken-for-muslims-hardayal-singh-united-sikhs-8332796

Could this rule be an example of indirect discrimination which particularly impacts (in a very negative way) on members of the Sikh community? In terms of the Equality Act 2010, Sikhs are covered by Sections 9 (Race) and 10 (Religion). Some Sikhs may not be particularly religious (in other words non-practising), but they will be covered by the protected characteristic of Race (see Mandla v DowellLee [1982] UKHL 7).

Interestingly, as a point of reference, Judaism is also a protected characteristic in terms of Sections 9 and 10 of the Equality Act 2010.

In its defence the Welsh Amateur Boxing Association will be arguing the health and safety card as objective justification. Of the rule. In response, Singh is arguing that the English Amateur Boxing Association dropped its rule demanding that boxers be clean shaven.

It will be interesting to see how this dispute develops.

A link to the story on the BBC News website can be found below:

Boxing beard ban not fair says Cardiff University student

Cardiff student Aaron Singh says the rules in Wales are “not fair” and discriminatory.

The Equality and Human Rights Commission has also published guidance for employers and organisations about the Sikh community and its beliefs:

https://www.whatdotheyknow.com/request/288201/response/709901/attach/3/guidance%20on%20sikh%20articles%20of%20faith%20for%20scotland%20pdf.pdf

More links to stories about Sikhism and potential indirect discrimination can be found below:

https://www.telegraph.co.uk/news/religion/2469905/Sikh-teenagers-bangle-discrimination-win-will-impact-rules-on-uniforms.html

http://news.bbc.co.uk/1/hi/8500712.stm

Copyright Seán J Crossan, 8 July 2019

Tickets for “people of colour” … or the problem with positive discrimination

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Tickets for “people of colour” …

In a previous blog (The force is not with you … published on 28 February and updated on 10 June 2019), I discussed the problems associated with policies of positive discrimination.

So, it is with some interest that I read an item on Sky News today about Afrofuture Fest a music festival which was to take place in the American City of Detroit. The festival organisers had offered tickets for sale to members of the public. Absolutely nothing unusual in that readers will undoubtedly respond, but what was unusual was the fact that the price to be paid in conjunction with an ‘early bird’ promotion was to be determined by the customer’s racial origins (tickets for “people of colour”).

If you were an African American applying for tickets, you would pay less than a White American wanting to go to the gig. I admit that I was intrigued by this marketing approach and I wanted to know what were the underlying motivations of the organisers? I confess: I’m coming from a different cultural perspective here in the UK and, generally, we’re not too keen on the widespread use of positive discrimination as a tool for promoting equality.

Well, it would seem that the pricing policy was motivated by a genuine determination to ensure that African Americans (who happen to be in the disproportionately lower income section of US society) were not deterred from attending the event by high prices. Furthermore, the organisers wanted a racially diverse group of music fans to attend the festival.

All well meaning, but the event has now become mired in controversy with the organisers receiving threats from white supremacist groups and artists deciding not to perform. The ticket policy has now been scrapped.

A link to how the story was reported on Sky News can be found below:

Festival scraps cheaper ‘people of colour’ tickets after ‘white supremacist threats’
http://news.sky.com/story/festival-scraps-cheaper-people-of-colour-tickets-after-white-supremacist-threats-11758953

Positive discrimination: the legal position

Discriminating in favour of one group of people over another (whether this is motivated by a good intention or not) will most likely be regarded as an example of direct discrimination which contravenes Section 13 of the Equality Act 2010.

The judgement of the House of Lords in James v Eastleigh Borough Council [1990] 2 AC 751 was particularly strong on this point and it was irrelevant that the Council was acting from motives of good faith i.e. to promote healthier lifestyles for female residents of the Borough. The simple fact was that the Borough Council was acting unlawfully (in breach of the then Sex Discrimination Act 1975) when it charged men for entry to the swimming pool when women were not charged for access to this facility. The Borough Council had committed an act of direct, sex discrimination.

Positive discrimination has only really been successful in the UK when the Westminster Parliament has given it the full backing of the law and, additionally, it complies with this country’s EU legal obligations.

One notable example of positive discrimination is the Sex Discrimination (Election Candidates) Act 2002 which aimed to encourage more women to enter Parliament by having all women short lists. Previously, such an attempt to promote positive action would have been illegal under the (now repealed) Sex Discrimination Act 1975.  Some (male) Labour activists did, in fact, bring successful legal challenges under the former sex discrimination legislation on the grounds that they had suffered discrimination because of their gender in being automatically disqualified from the parliamentary candidates’ selection process (Jepson and Dyas-Elliott v The Labour Party and Others [1996] IRLR 116).

The other example of positive discrimination involves the Police Service of Northern Ireland. The PSNI was created in 2001 following the Belfast or Good Friday Agreement in 1998. The PSNI replaced the old Royal Ulster Constabulary (RUC) which was largely seen as a biased or sectarian police force by most Roman Catholics in Northern Ireland.

According to figures produced by the official Patten Report, the RUC was overwhelming Protestant in composition (91.7% to 8.3% Roman Catholic).

One of the key recommendations of the Patten Report was that:

“An equal number of Protestants and Catholics should be drawn from the pool of qualified candidates.” [para. 15.10]

This led to a deliberate 50/50 recruitment policy in which half of the candidates recruited to the PSNI had to come from a Roman Catholic background.

That said, there was significant criticism of the 50/50 recruitment policy coming from the Unionist and Loyalist community in Northern Ireland – who were never going to be reconciled to the demise of the RUC in any case. The recruitment policy was only ended in 2011 by Owen Patterson MP, the then Conservative Secretary of State for Northern Ireland. Predictably, this development did not please the Nationalist and Republican community in Northern Ireland.

Affirmative or positive action

In the United States of America, of course, there is a completely different approach to the promotion of diversity and equality from what we would understand in the UK and the European Union. The Americans, for example, are very keen on affirmative action (or positive discrimination) and often employers will speak of filling quotas i.e. recruiting a certain number of African Americans or Hispanic Americans. This practice of affirmative action or positive discrimination is an attempt by the Americans to overcome the problems of historic and entrenched racism in their society. In the UK and the European Union, we too have had our problems with under-representation of certain groups in the work-place, but any attempt to introduce positive discrimination has been much more limited in scope.

Affirmative action has its limits: the ticket policy at Afrofuture Fest would, however, appear to be a breach of the Civil Rights Act 1964 (Title II) which states that:

“All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, as defined in this section, without discrimination on the ground of race, color, religion, or national origin.

The UK and EU approaches to positive discrimination

Limited positive action or discrimination has, for some time, been tolerated by the Court of Justice of the European Union where employers gave preference, as part of an equality policy, to female candidates over suitably qualified male candidates in order to address gender imbalances in the work-place (see Kalanke Freie Hansestadt Bremen (1995) C-450/93 and Badeck and Others (2000) C-158/97).

The Equality Act 2010 does, admittedly, permit what is referred to as ‘positive action’ in fairly limited circumstances and it has been observed that it does not really advance the law very much in this area.

Certainly, in terms of the public sector equality duty, organisations may be permitted to take specified forms positive action in the work-place to eradicate or minimise forms of discriminations e.g. ‘the need to tackle prejudice and promote understanding’ (see Section 149(5) of the Equality Act)

Section 158 of the Act permits an employer to take positive action to help individuals with a protected characteristic to overcome or minimise such a disadvantage. Such action on the part of the employer must, however, be a proportionate means of achieving this aim.

Section 159 also permits an employer to take positive action in recruitment and promotion in relation to people with protected characteristics. The employer will only really be able to utilise this provision if candidates for a job or a promoted post have the same or similar qualifications. In such situations, the employer will able to consider if candidates with protected characteristics are at a disadvantage or are under represented in matters of recruitment or promotion.

There is one important exception to the rules on positive action contained in the Act: it will not be illegal for an employer to treat a disabled person more favourably in comparison to a non-disabled person.

Conclusion

In the UK, positive discrimination in recruitment can be lawful under very limited circumstances. In other words, it is a practice which, if objectively justified, can be used to overcome historical patterns of discrimination e.g. to address the woefully low numbers of female politicians or the under-representation of Roman Catholics in the Police Service in Northern Ireland.

Such arrangements permitting limited positive discrimination tend to be governed by ‘sunset clauses’ i.e. they have a built in expiry date, so they will not last forever. Furthermore, positive discrimination is really only legitimate  in so called ‘tie-break’ situations where several applicants have the same qualifications and experience, but as a matter of public policy, for example, a female or minority ethnic applicant is given preference in order to address historic diversity imbalances in that particular work-place.

The Americans, on the other hand, have tended to pursue a very explicit policy of positive discrimination or affirmative action by placing an emphasis on the filling of quotas – either, for example, in employment or education. Such an approach places a legal obligation on employers and service providers (colleges and universities) to ensure that certain minimum numbers of people from racial or ethnic minority backgrounds are given a job or a place in training or education.

As we have seen with the ticket policy for events such as Afrofuture Fest, positive discrimination can be controversial and potentially unlawful.

Copyright Seán J Crossan, 8 July 2019

Surf’s up?

Photo by Emiliano Cicero on Unsplash

We seem to be on a theme dealing with mishaps concerning products – this blog and the previous one.

In the previous blog (Just blew it! (Again!)), I examined accusations of racism and anti-semitism surrounding the launch of Nike’s latest version of the Airmax trainer.

Now, we turn to Samsung which also has been in hot water in relation to its advertising campaigns in Australia. It would seem that Samsung is being accused of misrepresentation by the Australian consumer watchdog – the Australian Competition and Consumer Commission (ACCC) – concerning false claims that were made as part of the marketing campaign to sell the company’s Galaxy S10 mobile phones.

Apparently, consumers were told that they could safely go swimming and surfing with the phone on their person without the product suffering water damage. This statement does not appear to be accurate and Samsung now has to deal with a lot of very unhappy customers – as well as the ACCC.

In Australia, swimming and surfing are very popular past times and many mobile phone users will understandably want reassurance that they can use their phones without them being damaged while participating in such activities.

In contract law, there are three types of misrepresentation:

  • Innocent
  • Negligent
  • Fraudulent

A misrepresentation potentially renders a contract voidable and there may also be the potential to claim damages – although a claim for damages involving innocent misrepresentation in Scotland is not competent (unlike the situation in England and Wales).

In the UK, of course, false claims about products or services by a trader can fall foul of the common law of contract principles dealing with misrepresentation. At statutory level, we now have the Consumer Rights Act 2015 – principally Section 10 – which covers situations where the consumer relies on the trader’s expertise regarding the product’s fitness for a particular purpose.

A very important issue to consider in cases of alleged misrepresentation: the victim must demonstrate that s/he relied on the misrepresentation. It will not be enough to show that a misrepresentation or false statement of fact has been uttered by the trader (either expressly or by implication); it must have influenced the victim to enter a contract with the trader.

Section 10 of the UK Consumer Rights Act 2015 has been largely inherited from Section 14 of the Sale of Goods Act 1979 (which previously governed consumer transactions). Interestingly, Australia – as a former colony and then self-governing Dominion of the British Empire – has very similar consumer protection laws which are a direct result of its historical relationship with the United Kingdom.

Furthermore, in the UK, false claims about goods and services by a trader can also represent a potential breach of criminal law (as per the Consumer Protection from Unfair Trading Regulations 2008).

It will be interesting to see how this situation develops.

A link to the story on the BBC News website can be found below:

Samsung sued over water-resistant phone claims

Australia’s consumer watchdog alleges the company made false claims about using its phones while swimming.

Copyright Seán J Crossan, 8 July 2019