ET Fees – what should small organisations do?

You’ve probably seen today’s news that the Supreme Court has ruled that the current Employment Tribunal fees system is unlawful, primarily because it denies individuals the ability to exercise the rights granted to them by Parliament. If you run a small business or charity, you may wonder what this means for you. Here are some key tips

  1. Don’t panic – today’s ruling simply restores the legal situation to what it was in 2013.
  2. Treat Employees legally and fairly – you should be doing this anyway, most employers already do. If you’re not sure exactly what you should be doing, my posts here and here may help
  3. If you do get a claim from someone relating to a past dismissal (or other issue), alleging they were unable to make a claim at the time due to the fees, seek advice immediately. 
  4. Don’t believe the hysterical nonsense in the Daily Mail (actually, that’s true of most employment law issues)
  5. See point 2

The “Headscarf Ban” – what it really means for small businesses

Today’s ruling by the Court of Justice of the European Union (CJEU) that employers can ban Muslim women from wearing headscarves has attracted a good deal of publicity and comment from both sides of the argument. But it’s important for small business owners to understand the implications of the decision before deciding whether or not they need to do anything at all about this ruling.

First – and probably the most important point – is that banning a Muslim woman from wearing a headscarf is not direct discrimination only if it is part of a policy that all employees are not allowed the “visible wearing of any political, philosophical or religious sign in the workplace”. In other words, such a ban must also prohibit, amongst other things

·         Wearing of a cross by a Christian

·         Wearing of a turban by a Sikh

·         Wearing of a Kippah by a Jewish man

·         Anyone wearing a t-shirt with a religious, atheist or philosophical message (such as this for example)

·         Rastafarians having dreadlocks

I’m sure you can think of others (wearing a poppy in the lead up to Remembrance Day for example?).  

But even if you want to introduce such a ban (and we’ll look at why in a minute) you need to beware that such a policy might be indirect discrimination – in other words a requirement which, although it appears to treat everyone equally, disproportionately affects one particular group. Indirect discrimination is permitted by an employer if it is ‘objectively justified by a legitimate aim”. In the cases before the CJEU, the court decided that a legitimate aim could be that a company wished to convey an image of political, religious or philosophical neutrality to its customers, but that the desire of  acustomer not to be served by an employee wearing a religious symbol (in this case a headscarf) would not be a legitimate reason.

So, having considered all this, and the potential for a legal challenge if you do implement a ban, why would you want to do this anyway? How business critical is it that you convey an image of “neutrality” to your customers? Is it so important that you wish to try and dictate to your staff what they can and can’t wear?  What happens if someone is wearing a headscarf as fashion accessory or for hairloss after chemotherapy, not for any religious reason? How do you distinguish?  As we saw last year with the “High Heels” issue, imposing arbitrary and unjustifiable dress codes can lead to a wealth of damaging bad publicity for the companies involved.

And we haven’t even considered the issue of whether this ruling will be binding on the UK after we leave the EU (given that a claim now would probably take more than 2 years to reach the Supreme Court) – I’ll leave that one  for legal bloggers and commentators.

As always, remember the two golden rules of Employment Law for small business

1.       Don’t believe anything you read about Employment rules in the Daily Mail

2.       Just because you can, doesn’t mean you should.

Note: Like everyone else commenting today, I’ve based this post not on a reading of the full legal judgment (which is not available at the time of writing) but on the CJEU press release, which can be found here. Should the full judgment contain anything different, I’ll update this post.

Shared Parental Leave – Don’t Make a Drama out of a Non-Crisis

It seems that everyone in the HR and Employment Law world in the UK is getting into a bit of a tizz about Shared Parental Leave, which comes into force after Easter. “Does anyone understand Shared Parental Leave?” asked a CIPD blog recently, while employment lawyers are busy falling over themselves to offer seminars on the subject, so that employers can avoid “the baby trap” as one described it. Anyone would think that the entire structure of British industry was about to collapse because some fathers may want to take some time off with their newborns.

The concept of Shared Parental Leave is so simple that Employment Minister Jo Swinson could describe it in a tweet “It’s maternity leave shared between two people”. It is also true to say that the regulations themselves are complicated, partially because they use introduce clumsy new phrases like “continuous leave” and “discontinuous leave” and partially because they attempt to cover every single possible scenario. If followed to the letter, they also introduce some overly formal and bureaucratic procedures.

Confusing and bureaucratic regulations are nothing new in HR and employment law. We work within them all the time – and many organisations, especially smaller ones, bypass the letter of the law to get to solutions that work for both the employer and the individual employee (a fact the government recognised when it got rid of most of the bureaucratic rules around Flexible Working requests).

So why the fuss about this one? Setting aside the cynical view that employment lawyers make money from running seminars on new legislation, the resistance comes from the fact that too many people (including a lot in HR) don’t want to change or recognise the fact that the world of work is changing. Many employers are perfectly happy to take the benefits to them of flexibility (zero hour contracts, contracting services to the self-employed, a tacit acceptance of the fact that employees will work late unpaid and continue to respond to emails in the evening) but aren’t willing to accept the same when staff would like it. Couple this with the “HR says No” attitude still too prevalent among many in the profession and the thought of Shared Parental Leave becomes a doomsday scenario.

I’m not naïve, and I’m sure there will be some teething problems with Shared Parental Leave. But – as with every HR problem – constructive dialogue between the parties will usually sort out the situation, while a blind adherence to procedures and process won’t. It also seems likely that demand for Shared Parental Leave will be small at first, giving people a chance to get used to the new system.

One final thought. Around 20 years ago, the Disability Discrimination Act came into force. Then there was much wailing and gnashing of teeth about all the changes that companies would “have” to make and how it would force them to take disabled people they didn’t want to really employ. The high heavens didn’t fall then, and I don’t expect they will do now.

Wheelchairs, Buses and Prams

It’s impossible not to feel sympathy for Doug Paulley, the wheelchair user who was denied access to a bus because the wheelchair space was occupied by a passenger with a pushchair who refused to move. And I’ve no doubt that many will see the court victory by First Bus as evidence that disability rights are pushed to one side when big business comes to call.

But those criticising First Bus (of whom there are many on social media) need to remember one thing. It’s not some highly paid executive, or faceless corporation, who would be responsible for enforcing the ruling, had the court upheld Mr Paulley’s claim. Individual bus drivers are the ones who would have to police the decision, and they are the ones who would have to face the abuse from passengers if they delay the journey while trying to resolve the situation. And what is the driver expected to do if the passenger refuses to move? Physically eject them from the bus? Can you imagine the headlines?

Bus drivers – and others who provide frontline public services – already face a good deal of both verbal and physical abuse from their customers. From an HR and employment perspective, we have a responsibility to protect the health and safety of our employees. That might be a minor “admin” task for those who work in offices but is a big deal if your staff do a more dangerous job.

The real culprit here is not the bus company but society’s attitudes toward the disabled. The whole situation would have probably been avoided, not just if the other passenger had not been selfish but if the rest of the bus passengers had made it clear that her behaviour was socially unacceptable. Passing legislation, and then expecting low-paid frontline employees to implement it, is no substitute for basic good manners or an unselfish attitude.

Roll Over Beethoven

Government Minister Lord Freud got himself in hot water last week when a recording of a Conference Fringe meeting was revealed where he stated that some disabled people were not worth the minimum wage, and suggested that employers could pay them £2 per hour with a state benefit being used to top this up. While most criticised him, there were some who sought to defend his comments, with this Daily Mail article being a particular example. In summary, it makes two points; firstly that the author’s father, who was blind, accepted he should be paid less because he required support to carry out his work – despite the fact that he was a highly rated newspaper columnist; and secondly that “the market” would inevitably value some jobs (by implication those done by people with disabilities) below the current level of the minimum wage.

Taking the second point first, it is quite possible that, if we simply allowed the market to determine wages, some jobs might be paid less than the current minimum wage rate of £6.50 per hour. If Lord Freud and his supporters want to make the case for abolishing the minimum wage, then that’s a perfectly acceptable position to argue (though none of the mainstream political parties seem to support it) – but it does seem to me that dressing up this argument as some form of altruistic help for the disabled is at best disingenous.

What worries me though about the first point though is that it demonstrates how out of touch politicians and media “commentators” are with the modern world of work. Firstly they seem completely unaware of the Access to Work Scheme, which provides  support for those with disabilities in work. To take the example of the blind Mr Utley, these days he wouldn’t require his employers to provide him with a paid secretary to read the newspapers to him, since a) most modern software includes a “read aloud” feature (as well as other accessibility options) b) if he did need special equipment it would be paid for and c) even if he did require a full time support worker his employer would get assistance with the costs. Without making a political point, it seems as a taxpayer that the government spending £500-£1000 providing an employer with special equipment to support an employee with a disability to work  is a more cost-effective solution than subsidising the disabled employee through the benefits system. Even in the case of  severe disability, where the individual requires a full time support worker, the current system (though not perfect) seems a better option.

Secondly,  they assume that a disability means an inability to do anything. No-one (even his political opponents) seriously suggests that David Blunkett was less effective than any other Home Secretary because he was blind. Indeed, rather than paying him less, if Mr Utley Snr really was the “leading Tory thinker of his generation” you’d expect the Telegraph to be paying him top dollar (it’s that thing called the market again) rather than ripping him off. Just imagine how Beethoven would have managed under Lord Freud and his supporters. “I’m sorry Ludwig, I know this symphony is genius but as you’re deaf, we’re only going to give you a third of what we paid Schubert for his inferior composition”.