A Range of Reasonable Responses Halloween 2018
October has to be my busiest month of the year and it's been great to meet so many people across the country. It was particularly good to see over 100 people at the annual employment law update for West Midlands Employers and to make what I think must be about my 20th visit to the West London CIPD! It was also a pleasure to give a keynote talk at Daniel Barnett's annual conference for his HR Inner Circle. If you've subscribed to this after attending a session in October - welcome!
As I write this the Uber case is being heard by the Court of Appeal. No predictions from me as to whether or not they will agree with the EAT that Uber drivers were workers - and that they were working not only when driving but also while logged on and waiting for a job. I suspect however that it is their status between jobs that will be key to the final outcome.
Central to the EAT's decision was the fact that there was an obligation on the drivers to accept work. The EAT found that Uber pressurised them to take 80% of rides offered - even though it was accepted that this was not in itself a contractual obligation. The sanction of being logged off the system for a few minutes if a driver refused too many jobs persuaded the EAT that there was sufficient 'mutuality of obligation' to sustain a worker contract between jobs. The extent to which mutuality of obligation is needed in a worker contract is a hot topic among those debating employment status at the moment, so this is a good opportunity for the Court of Appeal to clarify things - or to muddy the waters still further. Let's see which it is.
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Non-Disclosure Agreements
Following the 'outing' of Sir Philip Green in the House of Lords, debate has been reopened about the use of confidentiality clauses in settlement agreements. Much of the time, however, the press has conflated two issues. The first is the use of the confidentiality agreement itself; the second is the decision of the Court of Appeal to grant an interim injunction preventing the press from identifying Sir Philip when he argued that the agreement had been broken.
The second issue is rather outside my expertise, but the best and most balanced piece I read about it was from Richard Moorhead, a professor at UCL. You can read his blog here.
What I think most of the debate has missed is just how commonplace - if not universal - confidentiality clauses are in settlement agreements. There are obviously issues if the agreement purports to prevent the claimant from going to the police to report a crime, but most employers who settle a dispute want to be confident that the dispute really is over. It is perfectly normal to agree that following the settlement neither side will disparage the other or repeat the allegations that may have been made by either side. There is talk of the Government intervening to limit the scope of confidentiality clauses in settlement agreements - but they need to tread very carefully. If they go to far then they might make settlements harder to reach.
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Gay cakes and discrimination
It is rather odd that both here and in the US the sensitive boundary between freedom of religion and equality regardless of sexual orientation is being tested principally in the realm of baked goods.
The Supreme Court has now ruled in the case of Lee v Ashers and many commentators have been surprised at their finding that there was no discrimination when a bakery refused to bake a cake bearing the slogan 'support gay marriage'. If you'll forgive the boast (and even if you won't) I think the blogpost I wrote back in 2015 when the case was first heard by the Northern Ireland County Court and then upheld by the NI Court of Appeal turned out to be a pretty good prediction of what the Supreme Court would say. Essentially direct discrimination needs to be targeted on people rather than ideas - and the bakers in this case would have refused to bake a cake expressing the idea of supporting gay marriage no matter who ordered it or would end up eating it. Despite the criticism I still think that this is the right approach and you can read my analysis of the Supreme Court's decision here .
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Disability discrimination in the Supreme Court
An important case on disability discrimination has now been heard in the Supreme Court. Williams v Trustees of Swansea University Pension and Assurance Scheme turns on the meaning of the word 'unfavourable'. You might think that there is little scope for argument about the meaning of a perfectly ordinary word - but you would be surprised. .
Discrimination because of something arising in consequence of a disability is based on 'unfavourable treatment' rather than the 'less favourable' treatment that lies behind most direct discrimination claims. The use of the word 'unfavourable' was clearly intended to simply remove the comparative element that 'less favourable' implies, but if the Court of Appeal is right, there is a twist. Mr Williams took ill-health early retirement as a result of his disability. Some time before, the employer had, as a reasonable adjustment, moved him to part time work and his enhanced pension was therefore based on his part-time salary. He pointed out that he had moved to part-time work as a result of his disability and that, had he been forced to retire as a result of a different condition (such as a stroke) which had the immediate effect of preventing him from working then his pension would have been higher. The Court of Appeal held that while this could amount to less favourable treatment, it was not unfavourable. The pension he received was a generous one and well in excess of any legal requirement. He could not claim to have been treated unfavourably when he was given what was in fact a very favourable benefit.
My view is that to treat one person less favourably than others is necessarily to subject them to unfavourable treatment, but I'm not sure that the facts of this case are ideally suited to making that point. The pension Mr Williams got was rather generous - and extremely expensive for the employer. Even if he wins in the Supreme Court there will still be the question of justification to consider and I think he will face an uphill battle on that front in any event. But I also think it's possible that the Supreme Court will just not see his pension as amounting to unfavourable treatment at all. I doubt we'll have the result before Christmas so there may be quite a wait to see what the Court says.
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Parish notices
There are a couple of public events coming up. On 22 November I will be speaking - and running a workshop on long-term absence and disability discrimination - for Babcock International. They are running a conference on schools HR and you can find out about the event here. Up in the North West I am running my annual event for North West Employers for local authority employers in the area on 5 December (details here) and for members of the Industrial Law Society I will be speaking at their evening meeting in Glasgow on 29th November - details here.
Thanks again for subscribing!
Darren
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