Things employers shouldn’t ask …

2 09 2009

Most people know that employers these days shouldn’t in job interviews ask women of child-bearing age when they intend to start a family.  Nor should they now ask potential employees how old they are.  The reason in both cases is that (a) it is usually going to be none of the employer’s business but, also, (b) it runs the risk of the applicant/employee later stating that the failure to appoint them was on discriminatory grounds. A report on the Personnel Today website from a few days ago questioned the wisdom of Cherwell District Council in asking employees to state whether they intended to retire in the next two or three years.  The Council is currently asking staff to work fewer hours or to work without pay to avoid the need for redundancies.  However, its request to staff to detail their plans and aspirations over the next two to three years could lead to them facing an age discrimination claim, suggests the article, if an employee could show that they were selected for redundancy because of their stated plan to seek retirement.  The same risk would apply if a woman stated she intended to start a family and was subsequently place “at risk”. 

The central difficulty in any such case is proving that the employer selected the employee for redundancy on discriminatory grounds.  I recently advised a client who was made redundant having advised his employer some months earlier that he intended to emigrate in a few years’ time.  He suspected that the employer therefore saw him as someone who wouldn’t be with the business long term and was this less likely to be as upset about having his employment terminated compared with someone who was, apparently, fully committed.  The employer, of course, denied that factor had played any part in their decision and the matter settled without Employment Tribunal proceedings.

Employers may see asking employees about their future plans as being a much easier way to select candidates for redundancy, but it is fraught with danger and may well embroil the employer in unwanted litigation if it took any action of any sort against the employee. Discrimination claims are not subject to the maximum cap on compensation that applies in unfair dismissal claims (and currently stands at £66,200). An employee who considers that their selection for redundancy was unfair can bring a claim for unfair dismissal (provided they have at least 12 months continuous employment experience of course) but that claim will be limited by the cap: not so with a claim based on discrimination as the reason for selection. Note to employers: just don’t do it.


Amnesty in trouble

1 09 2009

There are some things you just don’t expect to come across, like good weather at Bank Holiday weekends for instance, or Amnesty International being found by the Employment Appeal Tribunal to have discriminated against one of its employees on the grounds of race.  Yet that is what was found to have occurred in the case of Amnesty International v Ahmed that was reported recently. 

It’s an interesting case and not just because of the involvement of Amnesty in it. It states that the motivation of the employer in taking the action it did is irrelevant if the action taken is discriminatory in itself.  In this case Amnesty refused to appoint Ms Ahmed, a Sudanese lady, to be its Sudan researcher because it perceived there to be two potential difficulties with her appointment.  Firstly it was concerned that her impartiality might be called into question, especially given the sensitivity of the conflict in the Darfur region and because she was from north Sudan. Secondly,  Amnesty was worried for her safety and those working with her because of her nationality.  Consequently it decided that she should not be appointed to the role, despite the fact that she waa the best qualified for it.  A claim for race discrimination followed and Ms Ahmed succeeded.  Amnesty was held to have directly discriminated against Ms Ahmed on grounds of her racial origins.

A further argument by Amnesty that to have sent Ms Ahmed to Sudan would have caused them to breach health and safety law was not accepted by the EAT. 

The lesson for employers here is that any steps that might discriminate against an employee on the grounds of race (or sex) even when, as in this case, there might be seemingly sensible or benign reasons behind the decision, may well amount to discrimination.  Employers beware!

Thanks to Daniel Barnett’s case law update for bringing this to my attention.

Free Employment Law Resource

24 08 2009

I am delighted to announce that I will be writing the Employment Law resource on Insite Law, the online legal resource page run by Charon QC.  It is designed to be an online textbook, with hyperlinks to cases and to be capable of being updated regularly so that it remains current.

It is part of his initiative  to get more legal materials online, for free.  It is anticipated that the resource will be of most use to students, but it could also be helpful for practitioners in other disciplines who just want a quick introduction.  I have volunteered to cover employment law and am just in the process of getting started. It’s a daunting prospect at this stage as there is a lot to cover but, when finished, I hope it will be useful to readers and also complement the issues raised in this blog.  It will be published in instalments, which is just as well as I don’t fancy writing 300 pages by the end of the month.

Click here for a link to Charon QC’s announcement and for more on the project as a whole.  Charon QC has covered the law of contract and the law on Sale of Goods.  He is also writing on Tort.  Other contributors, like  Peter Groves of the Ipso Jure blog writing on Intellectual Property, have also come on board.  Hopefully most areas of law will be covered in the fullness of time.

What are Lawyers really like?

24 08 2009

Now, if this doesn’t provoke a whole heap of comments, no doubt mainly derogatory, nothing will.  This being the silly season it seems like an ideal time to ask the question.  And I’m not going to tell you the answer. Instead I suggest you read Tim Kevan’s new book “Baby Barista and the Art of War”, just published by Bloomsbury and which is based on his blog in The Times.  Tim is also a barrister, albeit he is currently taking a break from practising in favour of surfing in Devon and walking his dog.   

It’s a thoroughly amusing read and should be required reading for anyone contemplating a career at the Bar (or as a solicitor, we don’t come out too well either).  It’s the story of a “Pupil” (newly-qualified) barrister training in Chambers trying to outwit and outmanoeuvre the three other pupils in the hunt for the holy grail at the Bar; a tenancy in Chambers.  The characters are all vividly drawn and credible; the situations the characters find themselves in all give a real flavour of litigation from the side of the practitioner.    There’s plenty to amuse both lawyers and non-lawyers alike.

It’s not just a comedy though.  He also touches on big issues such as the independence of the Bar which will become much more of a live issue now that solicitors and barristers can go into partnership together since the introduction of Legal Disciplinary Partnerships last April.  For instance,

“For all their supposed independence, most barristers seem to live in a state of complete paranoia and spend so much time kowtowing to solicitors that their independence is worth even less than their pride”

You’ll also read the best explanation of why you shouldn’t sign up for a no win no fee agreement to fund your case, but instead get legal expense insurance in advance so that the lawyers don’t start worrying about how they are going to get paid.  No win no fee agreements do create a conflict of interest between lawyer and client and the question of how they (we) get paid becomes “a big fat ugly screaming beast jumping up and down on their head”.  Too true.

It’s a good holiday read – list price is £11.99, but considerably cheaper from Amazon.

Jobsworth is One

18 08 2009

One what you might ask?  To avoid potentially unpublishable suggestions, let me just clarify that Jobsworth – the employment law blog is one year old today.  It is, incredibly, one whole calendar year since I started this blog, which arose out of a newspaper column I was then writing.  95 posts later I’m still enjoying writing it but, more importantly, I hope you enjoy reading it.  To all of my regular readers may I say thank you for your support and kind comments? Some of you have even been kind enough to instruct me at Dale Langley & Co, where I do my day job.    I’ve had some very positive feedback on what I’ve written, which has been helpful.  If there are any topics you would like to see covered please let me know.

My posts on the alternatives to redundancy, such as pay cuts and working for free, have been the most popular to date.  I’ve spent most time writing on redundancy (not surprising given the times we live in) and not a great deal on unfair dismissal.  This I will be rectifying over the coming months as the blog hurtles into that awkward period between being able to crawl and before the terrible twos.  Time for a celebratory Farley’s rusk methinks.

Riam wins

14 08 2009

I was pleased to learn that Riam Dean, the law student who sued Abercrombie & Fitch for wrongful dismissal and unlawful harassment (because of her disability) won her case at the London Central Employment Tribunal.  According to The Independent today, she was awarded £7,800 compensation for injury to feelings, £1,077.37 for loss of earnings and £136.75 damages for being wrongfully dismissed.  It is reported that she did not succeed with her claim for “direct” disability discrimination which the ET thought was “not well founded”.   I would be interested to read the law report on this case, if it ever gets published, for the reasoning behind the decision. I’ve posted before on the case (click here).

It’s always good to see the style police take a battering.

FSA Remuneration Code for Bankers

12 08 2009

The FT is reporting today that the FSA has finally produced its remuneration code on how bankers should be paid.  I have only seen the headlines and brief summary of the proposals, but it seems that the FSA has shied away from being too prescriptive for fear of driving bankers abroad to less tightly regulated markets.  Expect a deluge of criticism to fall on top of the FSA, whose days are numbered if the Tories return to power at the next election.

The draft code stipulated that two-thirds of each bonus should be deferred and that individuals should be rewarded on the basis of the firm overall rather than just the individual or the business unit.  Apparently that isn’ t in the code to be published today. I posted last week on bonuses and clawbacks – click here to read it.

Undoubtedly the FSA will be criticised for not taking a more rigorous line, yet it is in a situation where it is damned if it does and damned if it doesn’t.  If they had produced a very stringent code the institutions would accuse the FSA of destroying London’s competitiveness as an international financial centre.  Other international regulators are not taking a hard line so why should the FSA?  In my view it would be a bad move to have a government body dictating pay – like the failed prices and incomes policies of the 1970s – and ask yourself this: if the state starts dictating what bankers can be paid, who will be next up for regulation?