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26 November 2022

Fake Law (5) Your Work

Tag(s): Current Affairs, Law
This is my fifth blog based on the book Fake Law – The Truth About Justice in an Age of Lies by the Secret Barrister[i] which I first commended in November 2021[ii]. This blog is based on the subject of employment law where there is considerable misreporting and exaggeration of vexatious claims and even serious attempts by the British government to divert the rights of individuals to apply to the courts for justice. 15% of the working population are self-employed but the rest are employed in a relationship that may often seem to give more authority to the employer than to the employed and it is fair, just, and right that the employees are accorded protection by the law and access to it. Yet this simple fact is under pressure from politicians and the media and, of course, many of the employers themselves.

It is perhaps surprising that given this fact few people have a particularly good understanding of the rights that they have and how to remedy them if those are breached. And yet there is also widespread misunderstanding of what rights we do not have so, for example, you have no legal right to time off on bank holidays. No more time and a half, double pay or time off in lieu; your statutory 5.6 weeks holiday per year is allocated according to your contract, and bank holidays are, unless specified, just like any other day. Your previous employer is generally entitled to refuse to provide you with a reference. Calling it a probationary period has actually no effect on somebody’s statutory employment rights. You still have to pay temporary agency staff holiday pay. LIFO, that is ‘last in first out’ is definitely not a watertight approach to redundancy selection. It is not a good idea to ask a female interviewee when she plans to start a family.

But despite this the employment protections in England and Wales are quite strongly weighted in your favour. But quite large parts of the media wrongly describe the complaint compensation culture with a deluge of vexatious or frivolous claims punishing so-called decent employers. The British Chambers of Commerce (BCC) condemned the employment tribunal system as ‘in dire need of reform’ and ‘overwhelmingly weighted in favour of the employee.’ In the early years of the Conservative Liberal Democrat coalition government concerted efforts were made by business groups to draw attention to this apparent scandal. The newspapers would present highly misleading statistics describing average claims when what they meant was the median rather than the mean i.e., a few outlying claims of high proportion would pump up the median to a very high level when actually the vast majority of claims were very low. Under this pressure the government then introduced a series of changes which led to a reduction in claims to employment tribunals by nearly 70%. This was at the expense of people who’d been badly treated, barred from taking statutory rest breaks, to lawfully take off time to attend antenatal classes or subject to bullying, racial abuse and then dismissal. Prior to 2013 the free to access employment tribunal system was now made subject to a system of application fees. These were disproportionately high for people bringing employment tribunal claims who having lost their income had no ability to pay such fees. Someone who might have been denied £70 in wages attending those antenatal class classes would now have to pay £390 to access the courts. Indeed, obtaining a declaration from the tribunal to stop your employer preventing you from taking your rest breaks was now priced at £1,200 as was the fee for the newly unemployed victim of racial discrimination. This led to a challenge before the Supreme Court in July 2017 when the Court declared that the government’s flagship reform effectively prevents access to justice and quashed it as unlawful.
 Why do we have employment law? The principle underlying employment law, and what differentiates it from the standard contractual relationship, is the inequality of bargaining power. In most cases the applicant needs the job more than the employer needs him or her as the employer will usually have a range of equally qualified applicants. For the vast majority of employees at the time of starting they are in no position to dispute standard terms and conditions and if they then dramatically worsen the employer knows that you are in a tough spot. Employment law underpins working relationships by providing further minimum standards, duties and rights, additional to the formal contract between you and your employer.

There has been a variety of employment rights that have vacillated over the past hundred years or so but current rights include the right to be paid the minimum wage, the right not to be dismissed without notice, the right to paid holiday, the right to redundancy pay, limits on working hours, the right to equal pay as persons of the opposite sex, maternity rights, the right to time off for new parents, the right to a written statement of your terms of employment, protections for whistle-blowers, protections when the business is taken over, the right not to be unfairly dismissed and the right not to be discriminated against on the grounds of age, disability, gender reassignment, marital status, race, religion, sex or sexual orientation.

The concept of unfair dismissal has existed since 1971 and today comprises the majority of employment – tribunal claims. It applies only to employees, and in most cases only upon accruing two years continuous service. In such a claim an employee has to prove that they were dismissed (as opposed to having resigned or consensually terminated the contract). It is then for the employer to show the reason for the dismissal, and that the reason is capable of being fair.

Some reasons are specified as ‘automatically unfair.’ They include being dismissed because of trade union membership or participating in lawful industrial action; for reasons connected to pregnancy, adoption or other family-related leave; because of an employee’s spent conviction; because an employee asserted a statutory employment right; and because of whistle-blowing. ‘Potentially fair reasons’ are set out in statute and include the capability or qualifications of the employee, the conduct of the employee, redundancy, a legal restriction preventing the employee from carrying out that job ‘such as a lorry driver disqualified from driving’ or ‘some other substantial reason.’

Once the employer has demonstrated a potentially fair reason, the tribunal considers whether, in all the circumstances, the employer acted reasonably in dismissing the employee, so the employment tribunal won’t in fact be concerned with fairness as much as reasonableness, something that runs through much of English law, (think of the man on the Clapham omnibus).

When it comes to discrimination that is not of itself unlawful, we all discriminate every day in every walk of life but there are protected characteristics that have developed over the past half-century starting with sex and race and later largely influenced by EU law. Since 2010 they have been consolidated in the Equality Act, which lists age, disability, gender reassignment, marriage and civil partnership, race, religion or belief, sex, pregnancy, and sexual orientation.

There are several types of discrimination including:  
  • Direct - for example where your employer overlooked you for promotion because of your sex.
  • Indirect - where an employer adopts a policy which applies equally to everyone which has disproportionate impact on a certain group of people with the protected characteristic.
  • Harassment - where if one employee racially abuses a colleague of colour the employer will, following long-established common-law principles, be vicariously liable for that misconduct.
  • Victimisation -  if an employer subjects an employee to demotion because they have made an allegation of discrimination
  • Disability - was already covered  but disability discrimination operates in a slightly different way. Crucially employers are under a duty to make reasonable adjustments to avoid a disabled person being put at a substantial disadvantage.
The BCC has also argued that employment tribunals are overwhelmingly weighted in favour of the employee, but most claims do not reach that stage largely due to the role played by the Advisory Conciliation and Arbitration Service (ACAS) which has a statutory duty to conciliate – impartially attempt to settle cases for free – in every prospective employment tribunal claim. The BCC itself has claimed employers win the majority of cases which is contradictory to their claim of anti-employer bias. 81% of claims do not make it as far as a full hearing either settling through ACAS, being withdrawn by the claimant, dismissed at an early stage or being contested by the employer. In fact, if you look at the statistics in a different way only one in five cases are ruled in favour of employees.

The Chartered Institute of Personnel and Development claimed to the Telegraph in 2011 that 55% of employers surveyed had ‘endured a complaint on malicious grounds’ but that self-reported figure is not saying that 55% of complaints are malicious but that just over half of employers had had at least one complaint on malicious grounds out of the many thousands of complaints that are made. experienced tribunal panel members have told the House of Lords that they have sat on employment tribunals for several years and do not remember any vexatious claims at all. If a tribunal is satisfied that the claim is scandalous or vexatious or has no reasonable prospect of success it can strike out the claim early in proceedings and often does.

Then scandalously in 2013 Chris Grayling’s Ministry of Justice introduced secondary legislation to impose fees on workers seeking to bring employment tribunal claims. The stated rationale was threefold: to transfer the cost burden of the tribunal system away from the taxpayer to those using the system; incentivise earlier settlements; and to dis-incentivise the flood of vexatious claims about which ministers had read so much in the right-wing press. Various fees were introduced which would not be about deterring vexatious claims but would have the inevitable effect of deterring all claims including the most meritorious, brought by the most vulnerable. The fees order was brought into law to dramatic effect. Claims overall fell by about 70%. The new order ignored the fact that a number of claims to employment tribunals don’t involve financial awards at all; employees can make a claim where, for example, an employer refuses to provide a written statement of their terms of employment. In such cases, no money changes hands; the tribunal simply makes an order that the employer comply with the law.

When this came before the Supreme Court in 2017 it handed down the most excoriating judgement. (I have read Lord Reed’s Judgement in that case supported by all the other Supreme Court Judges. It is quite long and very detailed but for those who have the time it is worth a read, and I give the reference below. He demonstrates that the Fees Order was unlawful under both domestic and EU law and he quotes its fundamental breaches of our constitutional law going back to Magna Carta. It must be one of the most critical judgements ever given against the actions of a Cabinet Minister let alone one who was Lord Chancellor at the time.[iii])  The decision had immediate effect. The Fees Order was quashed, and the government was forced to set about reimbursing all those who had made payments under it. However, the real victims were the many, low paid and exploited, who were unable to afford the fees and now find themselves years out of time to bring their meritorious claims.

If the right-wing press wishes to report a scandal in this area, they should focus on a different set of statistics. Over half of tribunal awards, legally binding court orders, are not paid in full by employers. Those are the cases we should be reading and complaining about.

[i]  Fake LawThe Truth about Justice in an Age of Lies. The Secret Barrister Picador2020 London

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