Category Archives: Equality Bill

What I say, or what I mean? Red tape and employment law

This is the fourth in our series of blogs about the ‘Red Tape Reduction’ consultation.  In this blog, we look at the opportunity to simplify legislation

Over the last 30 odd years I have seen a number of ‘simplifications’, and not one of them has simplified anything for anyone.   Take a few separate short statutes, and once ‘simplified’ they seem to turn into 100 pages of legislation and 200 pages of ‘guidance’.  Why is this?

It is not because anyone is trying to make it any harder than it is.   It may be because:

a)      European laws are ‘purposive’ – which means they are drafted with an intention to have a particular effect, and national parliaments have to work out how to achieve this – which is more complicated in the UK because …

b)      UK laws are written so that the words we use are what the law is

c)       When the UK courts and tribunals interpret UK implementation of EU laws, this can throw up problems with the UK approach (“what do the words say”) and the EU approach (“what is the legislation trying to achieve”).

There are specialists (Parliamentary draftsmen) who draft the words of laws in the UK.  It is a particular skill, honed in a tradition that stretches back centuries.  These people, when left to do their job, use words as a precise tool.  When it comes to implementing EU legislation they are being asked to frame the detailed wording of laws that are broad brush in their intent. 

When it comes to employment law the EU tends to work on ‘framework’ legislation, leaving it for national parliaments to set out legislation that brings the EU purpose into effect.  In many other EU countries, the national legislation is essentially framework too, and much of the detail is filled in with legally binding management and union agreements at regional, local and sector level.

In the UK we don’t usually have legally binding agreements, so the poor Parliamentary draftsmen end up trying to draft a ‘one size fits all’ set of legislation.  This means that all the variations by sector, size of company, special circumstance have to go into the legislation.  In other legal systems it would go into the appropriate agreements and anyone not covered by it wouldn’t have to read it!

In the UK we have an instinctive feeling that everyone should be treated the same under the law.  So the idea of laws that apply only to employers and employees in a particular sector is very alien to us.  Our ‘gut feel’ that there should be some kind of level playing field results in complications, exceptions, and heartache.

We like the idea of consistency and often feel that is some measure of ‘fairness’ but we don’t like complexity.  Equally we don’t like laws that are not appropriate.

In an employment market that includes global players, national organisations, sector dominant employers, small businesses, and micropreneurs about to take on their first part time employee, it is almost impossible to have one simple, clear approach that suits everyone unless we go back to the EU ‘purposive’ approach.

We could have employment laws that say – “Do what is appropriate and fair give the size of your organisation and its needs, balanced with the effect your decisions will have on the individuals and the degree to which they have brought this on themselves”.

But that, of course, would not satisfy those who want to know in advance that they have done the ‘right thing’.  The law could be simply expressed in a ‘broad brush’ way, but although that would simplify the wording of the law, it would not simplify predicting how the law would apply to a particular situation.

The “red tape” exercise is not going to be able to resolve the core conflict between the two systems applying the UK – that express law in a ‘framework’ way, and in a ‘what do the words say’ way.  So the discussion seems to be taking place around the edges.  But it is not trying to tackle some central issues about whether we could find a consensus of what we meant by ‘fair’ or ‘appropriate’ or ‘relevant’ when it comes to dealing with people in the world of work.

For our earlier blogs in the ‘red tape’ series, click here  for our discussion on whether we are over-regulated, click here for our discussion on how far we can repeal current legislation and click here for the third blog for our discussion on how government guidance notes affect us.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060
Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Bonfire of the delusion – do we have the power to repeal employment law?

Delusions about employment law

The government has announced more consultation on employment law, this time on TUPE and collective redundancies.  Both sets of legislation derive from EU directives.

In our last blog, we looked at whether we are in fact over-regulated and over-legislated.

a)            Assumption: in the UK we retain the power to repeal legislation

The thing most politicians don’t seem to grasp is the very limited extent of manoeuvre we have, even where we want to repeal legislation.  A significant amount of UK legislation relating to employment is the implementation of EU Directives.  Short of leaving the EU (which is another discussion) we do not have the power to say “let’s not have any legislation about this”.

We can take out any additional burdens imposed at UK level but we can’t abandon the whole thing.  If we want to live in an unregulated employment environment, we need to leave the EU.  Otherwise, we need to learn to live with a regulated environment.

We can lobby at EU level for changes to laws, even the abolition of laws, but in a large group of countries, our view will not automatically be adopted (even if we have one national view to present).

The only way forward for an individual employer is to live with things as they are and make the best of that.   Lobbying may work in the longer term, but we need to stop deluding ourselves that all this ‘law’ is going to disappear by magic of governmental pen.

I talk to clients quite regularly who say – “this shouldn’t exist”, “this shouldn’t be happening to me”.  A successful business strategy has to be founded on how things are, not on how you think things ought to be.

Employment law is no different to all the other elements that are needed to make a successful business.  Whilst unfettered freedom can seem like a good idea, it is unlikely we will arrive at an unregulated climate for business, and we all have to live and trade within certain legal limits.

See our previous blog

..to be continued…..

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.
Tel: 08452 303050 Fax: 08452 303060 Website :  www.irenicon.co.uk
You can follow Annabel on Twitter

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Filed under employment law, Equality Bill

Equality and Reality

The Equality Bill is slowly making its way through Parliament. This long and cumbersome draft (over 500 pages!) is another attempt to ‘simplify’ employment law. It will trigger the rewriting of many a policy, the collection of more data, and ever more litigation as the new definitions and terminology are clarified through the legal appeal process.

Any organisation that allows its recruitment, management and retention policies to be governed by the ‘minimum’ provisions of employment law is doomed to constant rewrites and ‘add-ons’ that impede the organisation’s function.

A healthy organisation needs the best staff it can get at every level of seniority. It is highly unlikely that excluding women, people from a particular race, religion, orientation, age or disability will generate this result. Aside from any legal or moral argument, group exclusions are not an effective way to choose who gets which job. We might as well say everyone wearing shoes and not trainers today is the Board, and everyone else is not!

The problems of ‘indirect discrimination’ disappear if an organisation properly assesses what needs to be achieved and how. If there is a genuine requirement for a job to be done at a particular time, in a particular way, and there truly is no alternative, then imposing that requirement on an individual is unlikely to be indirect discrimination.

It is the lack of investigation of alternatives (and the lack of documentation of this process) that causes most of the problems. We still tend to think – the job must be done this way – because it is currently being done that way. This is a particular problem with the part-time/flexible working debate. Most organisations are happy to have junior staff work part time (duties permitting), but many declare that senior jobs must be accompanied by full time (if not full time plus) attendance. This stops at board level though, where many directors are on the board of multiple companies or organisations.

The ‘compliance only’ approach to equality can result in an ‘inputs measurement’ approach to work. But surely now more than ever before, the real issue is not the inputs but the results. It is results that deliver customer service, profitability and stakeholder approval. There are few organisations who can survive the next few years on ‘good attempt, nice inputs’.

The ‘compliance’ approach is neither necessary nor sufficient to achieve good ‘equality’ objectives. In fact the compliance approach can give ‘equality’ a bad name, in that it can come pretty close to imposing quotas or favouring one group over another.

Whilst there is a moral and political argument for putting historically disadvantaged groups into improved positions within society, in an employment context you corrupt the effectiveness of the organisation if you extend the concept beyond enabling those individuals to attain the necessary qualifications/experience/adjustments in order to be able to compete effectively.

We need the best people we can find to help navigate our organisations through these troubling times. Wherever those people come from and whatever ‘minority boxes’ they do or don’t tick on your diversity survey, it is vital to find the best, brief them well, and let them thrive.

 

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 www.irenicon.co.uk

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When does performance management become bullying?

Ask an underperforming employee and they’ ll say, setting targets and giving warnings is bullying them.

Ask their manager and they will say they are frustrated by the lack of performance.  They will tell you an employment law requirement such as warnings makes their life difficult and imposes unnecessary procedural burdens.

Ask a high performing employee and they will say the setting of targets and giving of feedback is welcome and helps them improve their performance.

Employers have often failed to confront performance problems, or ‘square pegs in round holes’ and used transfers and ‘promotions’ to move employees out of critical performance areas. Until quite recently it was common to hear “he’s been here twenty years and he’s never been any good” as a long saga of under-performance and under management unfolded.

Now underperforming staff are more likely to be ‘performance managed’ out of the business.

The practice of setting objectives, then warnings, then dismissal (if objectives are not met), can look like a fair and objective process.  But, poor practice and a few rogue players are giving performance management a bad name, so that in some organisations announcing that an individual needs to go on a performance improvement programme is tantamount to handing them their notice!

The setting of impossible goals (by over stating the goals or under resourcing what is needed to achieve them) is one of the behaviors identified as bullying.

Not only will unrealistic goals undermine the fairness of any dismissal but they may also trigger claims of bullying.  If these claims are linked to any issue of discrimination this can turn into a very expensive ‘efficiency exercise’.

Managers need to take care that their performance management and supervision is based on what can be achieved and offers adequate training, resourcing and support.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060

www.irenicon.co.uk

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It’s not a bug, it’s a feature!

The world is an unequal place.   Attempts to level the playing field via legislation  can lead to inconsistencies and ‘priority battles’ that have not been properly worked out in the courts.

How do we deal with a workplace where sexism, racism, and youth culture collide?

  • Is ‘Yo bitch’ acceptable when addressed to your boss (a very tolerant boss!), but not to your subordinate?
  • Is the term ‘nigger’ a racist epithet, or a term of friendly teasing between members of the same group?

The statutory rules say that ‘harassment’ occurs when conduct creates an offensive or intimidating environment. People ‘in range’ who are offended (or associated with a person sharing the same characteristics) can have a statutory claim based on their response.

The law (wisely) does not seek to control how people think, just how they act.   This covers what people say in the workplace.    The basis of ‘equality control’ is limited to some (but not all) personal characteristics over which an individual has no control.

  • It’s OK (in equality terms)  to call a smart person stupid if they are acting stupidly
  • It’s not OK to call someone who is mentally impaired (disabled) stupid

It’s not OK at work to insult people whatever the basis and many behaviours that do not breach the Equality Act might be viewed as bullying.

In Equality terms, the law acts primarily as a ‘shield’ and not a ‘sword’.

  • An individual can complain about acts or assumptions that disadvantage them, but
  • they cannot use their own ‘protected’ characteristics to justify improper behaviour to  others.

We may have no control of our cultural or religious background, but we may not cite that as justification for our own discriminatory behaviour. .  In the world of ‘equal rights’, some rights are definitely more equal than others.

  • I am not required to respect a culture which does not respect me,

but in the working environment

  • I am required not to express that disrespect in the way I act towards member of that group.

And if my own cultural or religious position leads me to abhor gay people,  that will not entitle me to express my hostility in the workplace, nor allow me to protest disciplinary action taken by my employer if I do so.

A man who can’t take orders from women for cultural reasons won’t get much sympathy from a tribunal if he complains about a new female manager  – but he  may cause significant organisational difficulties and disruption.

In the context of religious belief, the court cases so far have clearly decided that religious beliefs do not legalise discrimination against other groups.

UK employment law is rooted  in a mixture of Victorian “master and servant” common law, local parliamentary interventions, and European-derived statutory provisions.   We struggle to keep up with changes in the world of work.

When HR is at the top of its game, the legal environment provides a springboard for supporting people and talent management in the organisation … these are not hurdles, they are the steps of a ladder leading upwards.

These are not academic consideration, but the reality of the daily calls we get for advice. HR practitioners find themselves wrestling with competing and complex issues.  Identifying solutions that are work  is satisfying and creative and makes a real contribution.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 email: info@irenicon.co.uk

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Equality v Diversity

Are all cultural beliefs of equal ‘value’, to be respected no matter what? Are some beliefs or practices just plain wrong?

Diversity is about difference and variation. It is possible for diverse things to be equally valued, but it’s a concept that is extremely hard to manage in practice.

I visited South Africa after the end of apartheid, and found myself having to pay the gardener in a house we were renting. Having given him his week’s wages, I asked him to do a particular gardening job. I am a keen gardener and could see the job needed doing. The chap (for it was a man) responded that he did not take orders from a woman. He told me that, in his culture, women were quiet and did what they were told.

I am not debating the rights and wrongs of Zulu gardener culture, but I am seeking to explore how I am to deal with equality and diversity when diverse cultures do not offer me equality, or accept the notion of diversity.

How do I respect a culture that regards me as a second class citizen with limited rights?

What if someone holds a belief that demeans me? Should I wait until it has a practical effect on my life, and then challenge it? Should I take pre-emptive action and campaign for protection against those beliefs being activated in the real world?

For the gardener, should he be entitled to:

  1. Hold his beliefs silently, but not express them to other people?
  2. Express his beliefs within his own culture, but not outside it?
  3. Act upon his beliefs within his own village, but not when he leaves it?
  4. Act upon his beliefs because, wherever he is, that is his culture?

My exchange with the gardener was relatively trivial, but what if we apply this question more widely.

Does my freedom rest in the censorship of others? If so, how far should they be censored before my freedom is excessive? How far should I be censored? Does anyone have, or should they have, a legal or a moral right not to be offended at any time?

The Equality Bill requires the Equality Commission to square the circle of “equality or diversity” by demanding “equality and diversity” as part of its fundamental duty (see below). The Commissioners are being set an impossible task by the legislature. It would be better that the legislators were honest in calling for achievable outcomes, rather than promoting high-sounding phrases that are bound to disappoint.

 

3 Fundamental duty

The Commission shall exercise its functions under this Part with a view to the

creation of a society in which—

(a) people’s ability to achieve their potential is not limited by prejudice or

discrimination,

(b) there is respect for and protection of each individual’s human rights

c) there is respect for the dignity and worth of each individual,

(d) each individual has an equal opportunity to participate in society, and

(e) there is mutual respect between communities based on understanding

and valuing of diversity and on shared respect for equality and human

rights.

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Paying for other people’s mistakes – the Equality Bill

Under current UK equality laws, an employers is ‘vicariously liable’ for discrimination at work if the discriminator is in their employ (or an agent acting on their behalf).   

“Vicarious liability” is when you get to pay the penalty for something done by someone else — so you pay for what your employee did, even though you didn’t do it yourself.  

Employers often naively believe that this only applies to act they have ordered their managers to do.  The reality is almost the reverse.  Employers who have not taken ‘reasonable steps’ to prevent discrimination will find, under current UK law, that they are liable for their employees’ discriminatory actions.

 Employers are often knee deep in policies, guidance, staff handbooks and accompanying paperwork.  If documents are badly drafted (all too often the case), they will be long, hard to understand, and will contain specialist terms and broad instructions that can’t be used as a practical guide for day to day behaviour at work.

Current equality law requires the employer to train their managers avoid ‘vicarious liability’. But “equality training” is often about equality principles, and leaves individual managers quite bewildered about what they should be doing.

This fosters the mistaken believe that “black people can’t be sacked for poor performance”;  or “you can’t ask women to do lifting because they are women”.  These ‘play safe’ assumptions are not only stereotypical and wrong, but they also discriminate against other workers and create resentment in the workplace.

Under the Equality Bill, an employer’s defence to ‘vicarious liability’ claims will be that they took such steps as were reasonably practicable to prevent the employee from doing the act. If the equality training offered by an employer results directly in discriminisation against one group in favour of another, then the employer is going to create liability by the process that was supposed to avoid it.

Employers who receive equality-related grievances are going to be in more of a dilemma than they currently are. If, for example, a woman raises a sex discrimination grievance against her manager, she has the right for that grievance to be properly heard and dealt with.  But fairness of treatment also applies to the male manager, who can (and they often do) claim that a female manager would have been believed, or given the benefit of better process etc, and they were not. The ‘play safe’ option to prevent recurrence is going to be dismissal, but a knee jerk dismissal will be discriminatory against them!

The ordinary person is not skilled to make these judgements or conduct such investigations. King Solomon himself might have found the issues perplexing.

We regularly investigate and advise on such claims.  Even well-informed HR departments can rarely deal with the investigatory process, while the small business owner is sunk without a trace as s/he tries to apply common sense and logic to an Alice in Wonderland world of accusation, denial, counter accusation, with everyone claiming they are the victim of discrimination.

Employers are standing into danger if they don’t investigate claims and take appropriate action (since they won’t have taken reasonable steps to prevent discriminatory treatment), and they are standing into danger if they do investigate and take action. If they uphold a grievance claim, this inevitably starts a discrimination tribunal. If they dismiss the alleged perpetrator, they risk a tribunal claim.  And if they don’t, they run more risks of discrimination claims from the original complainant.

The sad thing is that thousands of ordinary managers are afraid to deal openly with problem staff if they belong to a ‘protected group’, whilst real bullies who subject their staff or colleagues to appalling rudeness, mockery and cruelty in the workplace all too often go unchallenged and unrebuked.

This long, wordy, and complex piece of legislation will only reinforce the problem.

 

 

74 Employers’ and principals’ liability

(1) Anything done by a person in the course of his employment shall be treated for

the purposes of this Part as done by the employer as well as by the person.

(2) Anything done by a person as agent for another shall be treated for the

purposes of this Part as done by the principal as well as by the agent.

(3) It is immaterial for the purposes of this section whether an employer or

principal knows about or approves of an act.

(4) In proceedings under this Part against a person in respect of an act alleged to

have been done by his employee it shall be a defence for the employer to

provide that he took such steps as were reasonably practicable to prevent the

employee—

(a) from doing the act, or

(b) from doing acts of that kind in the course of his employment.

(5) Subsections (1) and (2) shall not apply to the commission of an offence under

section 56.

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