In R (on the application of National Secular Society) v Bideford Town Council [2012] EWHC 175, Mr Justice Ouseley decided that he was right.

This was not because the prayers infringed Mr Bone’s human rights under Articles 9 and 14 of the European Convention of Human Rights. He was free to stay or go during prayers without penalty. Nor was there any indirect religious discrimination under Section 45 of the Equality Act 2006 (now Section 149 Equality Act 2010). ‘The fact that someone may be hostile to a practice does not mean its observance puts him at a disadvantage’ (paragraph 53).

The judge decided that prayers were unlawful because the Council, as a creature of statute, needed statutory authority to permit the practice of prayers. The only relevant provision, Section 111 of the Local Government Act 1972, allows local authorities ‘to do any thing which is calculated to facilitate, or is conducive or incidental to, the discharge of any of their functions.’

The High Court decided that, whilst the majority of Bideford councillors thought that prayers were conducive to their work, the test was objective. Needless to say, the Council was unable to produce any empirical evidence that prayers facilitated the discharge of its functions.

The judge was wrong, in my opinion, on two counts. First, common sense suggests that even statutory bodies have an inherent right to control their own procedures, just as courts do. Councils do not need a specific statutory power to spend two minutes in prayer at the beginning of meetings, just as they do not need statutory authority to spend, as Mr Bone suggested, a few minutes in silence.Secondly, Section 111 is surely wide enough to encompass prayers, as Mr Francis Bennion argues in a letter yesterday to The Times. When I was a junior lawyer with Nottinghamshire County Council, we looked to Section 111 to encompass not only (then novel) payments to professional foster parents, but the rescue of a local company, Beeston Boiler, and Olympic sponsorship for Torvill and Dean. Local authorities are all about local initiative.

I look forward to an appeal.

Geoffrey Bignell, Chairman, Just Employment Solicitors.

Parents of children up to the age of five are currently entitled to a minimum unpaid parental leave provision of 13 weeks, which applies per child.

This allowance was set to increase to 18 weeks under the Parental Leave Directive, which comes into force on 8 March 2012.

However, the Government now plans to use an exception which allows member states an additional year’s grace to implement the rules, as a result of the ongoing development of its ‘modern workplaces policy.’ The increase will now come into effect in March 2013.

Clare McDairmant, Solicitor, Just Employment Solicitors.

It comes from St Lucia, a delightful town in KawaZulu Natal, South Africa, where hippos roam the streets at night. Hippos are dangerous, not to be trifled with.

Appreciation from clients is one of the great satisfactions of being an employment solicitor. An unsolicited testimonial arrived today from a solicitor client from East Sussex:

‘I take this opportunity once again to thank you for all your efforts on my behalf, through what was for me a very stressful time these past few months. I was very appreciative of your advice, patience and kindness, shown to me and also with the professional quality and speed that you applied to progressing my requests and my case generally. I would have no hesitation in recommending your services to anyone else needing employment advice.’

David Brent in ‘The Office’ deceived himself when he claimed to be making a difference. For an employment solicitor, there is satisfaction in genuinely doing so.

Geoffrey Bignell

Clare McDairmant, Solicitor, Just Employment Solicitors

When I served with Nottinghamshire Police, years ago, four police officers went to a pub and crashed the car on the way home. Fearing a conviction for drink and/or careless driving, they walked home and reported the car stolen. The duty inspector went to interview them and suspected that they were lying about the car being stolen. He invited them to reconsider their story and said he would be back in ten minutes. The four officers maintained their lies and were subsequently convicted of wasting police time. They were disciplined by the chief constable, but kept their jobs.

Would you trust these officers, who readily conspired to lie to their managers? Or serving Surrey officers convicted of obstructing police, wounding, drunk driving and resisting arrest?

It is difficult to comment, perhaps, without knowing more details of individual cases, but many of us civilians would lose our jobs for such convictions. Employment contracts often make criminal convictions (other than minor driving offences) a dismissal offence. One of my clients recently dismissed a trainee for drunk driving, partly on the grounds that the offence itself destroyed the relationship of trust and confidence.

The public is entitled to expect police officers to have high standards of integrity. Most have, in my experience, but tolerance of ‘bad apples’ undermines confidence in the police as a whole. How do you know whether the officer you are dealing with has integrity?

Police officers should have the confidence of knowing that any criminal conviction (other than minor driving offences) will lead to dismissal. This is one of the few areas, in my mind, where a ‘zero tolerance’ policy is justified. The are many young people with integrity waiting to join the police, but very few vacancies.

Defence solicitors need to know about police convictions, so that they can question the integrity of convicted officers in court.

Another worrying factor is this. Police officers deal with the criminal law all day long. They are experts at knowing the loopholes in how to evade prosecution and conviction. If they are prosecuted, they know the best defence solicitors and barristers to employ. Convictions are few and far between, which means actual convictions are inevitably ‘the tip of the iceberg’. The police need, as Sir Robert Mark said when appointed as Metropolitan Police Commissioner, ‘to bring morality back into fashion’.

What do you think?

Geoffrey Bignell

The Tribunal concluded “”we are positively outraged at the way this employer has behaved. The claimant has lost her role and status. She is never going to return to work as a doctor, a profession which she cherished together with the status that brings with it.”

If you have problems managing a bully; or you are a victim of bullying, we can help.

Rachel O’Connell

Everyone supports the principle of equal opportunity. More controversially, I believe that  concessions should be made to encourage more women to aspire to the higher reaches of the judiciary, the High Court and the Court of Appeal. One such concession is flexible (part-time) working.

This sounds fine in principle, but there could be a cost.

There are many part-time, or ‘fee-paid’, employment judges. Litigants tend to prefer full-time judges, who inevitably gain experience more quickly than part-time judges. The confidence of litigants in the judiciary is important, but this is also an argument for more women judges.

Does flexible working mean that part-time judges will not sit on longer trials, say five days or more? If so, again they will miss out on experience and leave the burden of more complex cases to their full-time colleagues. Would this be fair, consistent with equal pay for equal work?

I was in a five-day High Court trial, in which the judge took Monday afternoon ‘off’ to deliver a judgement in another case. The litigants had to pay for that half-day, because  brief fees (and, doubtless other costs) were based upon a full day’s work. How would litigants have felt if the judge worked flexibly to avoid working afternoons?

A part-time judge dealing with one of my employment cases forgot to put an adjourned hearing in her diary and so failed to turn up for a hearing. The Regional Judge had to apologise to the litigants, who incurred extra costs and inconvenience as a result. I do not suggest that this is typical, but there can be administrative problems attached to flexible working.

Concession should be made, but perhaps the unfortunate reality is that it is difficult to do any top job part-time?

Geoffrey Bignell
30.11.11

As Employment Judge Emerton said in Ferrao v Create Health Limited (Case No. 2300758/2011), where I represented the successful claimant, a ‘bank nurse’, ‘if it quacks like a duck, it’s a duck, even if you call it a goose’.

There is no satisfactory definition of ‘employee’: ‘It is almost impossible to give a precise definition….It is often easy to recognise a contract of employment when you see it, but difficult to say wherein the difference lies.’ per Denning LJ in Stevenson Jordan and Harrison v MacDonald and Evans [1952] 1 TLR 101.

Each case turns on its facts and there continues to be abundant litigation over the status of ‘employee’, ‘worker’ and genuinely ‘self-employed’.
Employment status is important, because ‘employees’ have important rights to claim unfair dismissal, redundancy payments, maternity pay and TUPE protection. Self-employed ‘workers’, as well as ‘employees’, can claim unlawful discrimination, holiday pay and  minimum wage. Employment status also determines tax liability, with the tax regime offering benefits broadly in inverse proportion to employment protection rights.

Litigation generally involves claimants seeking to prove they are ‘employees’ or ‘workers’, to invoke employment protection rights.  Other litigation involves HMRC against individuals who claim to be self-employed, but are ‘employees’ in the eyes of the taxman.

The most recent and high profile litigation comes from from Miss Quashie, the £200,000 a year lap dancer at Stringfellows. Miss Quashie claims unfair dismissal. To succeed, she must first show she was an ‘employee’; whilst Stringfellows reported defence is that she ‘has the employment rights of a market trader’.

‘Control’ used to be the dominant test of employee status. Miss Quashie was subject to detailed club ‘rules’, but she will have a greasy pole to climb (the allusion is to Disraeli) in distinguishing Spearmint Rhino Ventures (UK) Limited v HMRC [2007] EWHC 613 (Ch). In Spearmint, the High Court held that dancers were liable for VAT, as they supplied services on their own behalf and not as employees or agents or of the club.

The Supreme Court, in Autoclenz v Belcher [2011] UKSC 41 was dealing with a very different set of facts. Car valets, who worked in teams of four and were paid per car, had contracts saying they were self-employed sub-contractors. But they had no other source of work; and Autoclenz provided invoices, equipment and materials. The Supreme Court held that they were employees, looking at the reality of the situation. Here, the written agreement did not represent ‘the true agreement….This may be described as a purposive approach to the problem.’ per Lord Clarke.

This is where employment law strays from traditional contract law, on the basis of lack of equality of bargaining power between employer and employee.  An employer is in a position to impose a written employment contract which does not reflect the intention of the parties.

In another Supreme Court decision this year, it was held that an arbitrator was not ‘employed under’ a contract and so not within the scope of discrimination law: Jivraj v Hashwani [2011] UKSC 40.

The legal profession has been beset by more than our fair share of litigation over employment status. We are familiar with the terms ‘equity partner’, ‘fixed-share partner’ and ‘salaried partner’, but labels are not conclusive. A ‘partner’ may be an employee; just as a ‘director’ may not be an employee.

T, a solicitor, was a ‘fixed share’ partner in an LLP. He signed an LLP membership  agreement, was paid monthly drawings based on a fixed share of profits and received a  share of residual profits. He could sign cheques. He made a capital contribution. He was entitled to attend members’ meetings and to a residue of the firm if it was wound up. But there was a substantial disparity between his financial contribution, his involvement in management, his voting rights and his profits, compared to the equity partners. He had no client base. Was he an employee?

B a solicitor in another firm, was a ‘salaried partner’, also paid monthly drawings and a profit share. He, too, signed a partnership agreement. He had no capital stake and bore no risk of losses. Again, he was not treated by the equity partners as somebody ‘within their hierarchy’. He was subject to targets and challenged when these were not achieved. He was not consulted about significant events in the life of the firm, ‘such as an impending audit by the SRA’. Was he an employee?

T was not an employee: Tiffin v Lester Aldridge LLP [2011] IRCR 105. But B was an employee: Williamson & Soden Solicitors v Briars [2011] UKEAT/0611/10. ‘First…what it is essential to focus upon is the true nature of the relationship; secondly, that will primarily be a matter for the …evaluation of fact; thirdly…the labels that parties place upon the relationship may be relevant factors, but are in no sense determinative’ per Langstaff J in Briars.

Will the Supreme Court entertain us again next year? Look out for X v Mid-Sussex CAB [2011] EWCA Civ 28 CA, on appeal as to whether a disabled lawyer volunteer was a ‘worker’; and O’Brien v MoJ in the ECJ (C-393/10), on whether fee-paid judges are part-time ‘workers’ entitled to equal treatment in pension rights. The dance goes on.

Geoffrey Bignell

Vince Cable, Secretary of State at the Department for Business Innovation and Skills, said yesterday:

‘’The aim of increasing the qualifying period is to give greater confidence to employers in recruiting new employees, without undermining workers’ sense of job security at a time when consumer confidence is low.’

But he can’t have it both ways. Making it easier for employers to dismiss inevitably reduces employees’ job security.

The government estimates that this will reduce the number of employment tribunal claims by 2,100 to 3,200 year, representing 4% to 7% of all unfair dismissal claims. This is small beer, with unfair dismissal claims already down by around 10,000 (17%) over the past year. Employment tribunal statistics show that there are fewer unfair dismissals claims than there were ten years ago.

The qualifying period for unfair dismissal claims has changed often over the years: from two years to six months to one year. The period was reduced to one year in 1999 after the House of Lords held in R v Secretary of State for Employment ex parte Seymour-Smith (No, 2) 2000 ICR 244 that a two-year qualifying period was justified indirect sex discrimination. The legitimate aim was to encourage employers to recruit more employees.

More recent figures show that disparate impact on women generally is harder to establish. The impact assessment shows that (mostly female) part-time, young and non-white employees are less likely to have two years’ qualifying service. Whether such disparate impact is objectively justified only the courts can say.

The government has ruled out extending the qualifying period only for small firms, on the basis, first, that small business is not disproportionately affected by unfair dismissal rules and, secondly, that the benefit of the two-year period should apply to all businesses.

Claimant solicitors will be alert to pursue other claims, where ‘normal’ unfair dismissal is no longer available. Unfair dismissal claims can be brought with no qualifying period where dismissal is for various prescribed reasons, including making a protected disclosure; and discrimination claims can also be brought from ‘day one’.

Will making it easier to sack people create more jobs or more unemployment? Will lack of employment protection for two years make staff more reluctant to move, reducing job mobility?  The government has promised to monitor the impact, but clear evidence seems unlikely.

What of justice? ‘…justice in the tribunals (and in the courts) is not a war, or battle, or a game….it is (or certainly should be) a reasonable, sensible and civilised way of sorting out disputes that the parties have unfortunately been unable to sort out themselves.’ Lord Justice Mummery in Gayle v Sandwell & West Birmingham Hospitals NHS Trust [2011] EWCA Civ 924 CA.  There will be more disputes without legal remedy.

Geoffrey Bignell