In this newsletter we will look at the badly drafted Brexit Bill, work place dress code and an employment law decision regarding employer’s liability outside work.
If I have no said so before, Happy New Year and I hope that compliance with the current legislation regarding employment rights and Data protection rights were part of your New Year’s resolutions!!!
We are proposing to send out emails on a weekly basis. These will be much shorter than the newsletter and may deal with topical issues or just be a bit of fun. Nothing hard, if you do not want to receive these emails let me know.
1. Brexit –We still have a legal problem?
The Brexit case has finally been decided by the Supreme Court 8 to 3 dissenting judges. The outcome is no surprise. The argument of the Attorney General was rejected, again no surprise. The unanimous decision that there was no need to discuss matters with Northern Ireland or Scotland under the devolved powers did cause me a great deal of concern and I wondered if this aspect of the Judgement should be challenged.
I am not going to discuss the Supreme Court case as political and legal journalists have covered the subject well.
The dissenting Judgements were of interest and should be read if you have time.
The decision has been made and we have a new bill that has been laid before parliament. ‘The European Union Notification of Withdrawal Act[i]’. It is a two paragraph bill written in plain English. When you read it, it looks as if it does the job. However if you look at it closely, horror of horrors, no, it does not do the job. Jo Maugham QC kindly wrote an article using the title of Samuel Beckett’s play ‘Waiting for Godot[ii]’ highlighting this point. He said “if the referendum is not the decision to leave, and the decision to leave has to be taken by parliament, where is the decision to leave in the bill?” The last three words are mine!!!! Come on, I have to show some intellect.
The decision to leave is not in the wretched bill, as it only makes reference to giving the Prime Minister power to provide the European Union with a withdrawal notice under article 50(2) of the EEC Treaty. I am deeply unimpressed that a bill that appears to solve a simple problem, is wrong, so it will be amended in due course as it passes through the House of Commons and the House of Lords before it becomes law.
Brexit appears not to be as simply as it was sold to the people of the UK.
2. Employers vicarious liability for the acts of employees
In employment law, it is accepted that employers are vicariously liable for the acts or omissions of their employees during the course of employment. In certain instances, the liability of employers can extend to social settings for the behaviour of employees. However there has been a very strange judgement made on this point in the High Court. The case is Bellman v Northampton Recruitment Ltd  EWHC 3104 QBD.
The firm had a Christmas party and after the Christmas party, some staff went to a nearby Hilton hotel and had a few more drinks and got completely intoxicated. Mr Major (the MD) and his wife ran a HGV drivers Recruitment Company. They were the owners and shareholders of the defendant company. Mr Major and Mr Bellman were friends. Mr Major had offered Mr Bellman the job of Sales Manager.
Mr Major whilst intoxicated reminded everyone he was in charge, he paid the wages and made important decisions about the company.
Mr Major hit Mr Bellman. Mr Bellman had not provoked the attack and it was unwarranted. Mr Bellman got up, and held out his hand as if to say he was surrendering. Mr Major however hit him again. It resulted in Mr Bellman falling to the ground for a second time, hitting his head. His skull was fractured and there was bleeding on the brain. Mr Bellman suffered a traumatic brain injury. It is my understanding that Mr Bellman cannot work as a result of the injury.
CPS decided not to prosecute; simply amazing!
Mr Bellman, with the assistance of a third party brought an action against the Defendant Company stating that it was vicariously liable for the conduct of its employee, Mr Major
Held by the His Honour Judge Cutter
There was no liability on the part of the employer company because the assault was committed after several hours after a work social event. In other words, Mr Major was acting personally and outside the scope of his employment.
3. High heels and workplace dress codes
First of all I deliberated as to whether or not I should cover this topic again as I had discussed it in a previous newsletter. The topic is still very much live and topical because over 138,500 people signed the petition of Nicola Thorp. The report on High heels and work place dress code looked at the issue of high heels in the work place and in particular the industries where high heels are often required: hospitality, corporate, tourism and agency services. More often than not, it was young women who were expected to wear high heels.
Women were usually asked to wear makeup, dye their hair blond, tight revealing clothes and short skirts.
The interesting aspect of the report was that when John Bowers QC[i] was asked about the legitimacy of the practise; it was not clear cut that if a woman took the issue of being forced to wear high heels to court she would win the claim.
We are all aware that employers are not allowed to discriminate against the genders in the work place. Sex discrimination (like race, age, disability for example) is one of the protected[ii] characteristic under the Equality Act 2010.
Direct discrimination[iii] occurs when A treats B because of a protected characteristic, less favourably in the work place. High heels however is not caught by the direct discrimination legislation because work a place dress code policy document is usually applicable to both sexes. If high heels are to be found in the dress code policy and effects one group (women), it will be regarded as indirect discrimination[iv] under the law.
Indirect discrimination can in law be justified if it is reasonably necessary to achieve a legitimate aim and it is here that it is believed that the law falls down and does not help women. The tribunal costs just to issue a case is in the region of £1,200 and this too is clearly a deterrent for some women.
The committee found the current law did little to protect women from gender discrimination in the work place. The committee has asked for the government to review the law and to increase the penalties that tribunals can make and award against employers. The current penalties do not to stop employers breaking the law.
High heels worn for a long period of time is bad for women’s health as highlighted by the report at pages 8-13.
Wearing high heels at work also gives rise to health and safety considerations! A good employer should do a proper risk assessment.
The Management of Health and Safety at Work Regulations 1999 require an employer to (1) conduct a suitable and sufficient assessment of the risk to the health and safety of persons at work[v]; and (2) to set out a hierarchy of risks in the workplace. This risk assessment duty builds on the general duty on employers under section 2 of the Health and Safety at Work Act 1974 to provide a safe working environment.
Employers should consider:
· Reviewing and re-writing the work place dress code policy that may impact staff at work. Try to remove where possible any gender bias for example if you feel it is a perquisite that a woman’s hair is neat and she must wear make-up. Then a man must be clean shaven, wear his hair short and neat and should wear aftershave. Sorry if some of you are mumbling what rubbish is Johanna on about now; but I am trying to get you into the habit of understanding equal treatment.
· Training so as to prevent discriminatory treatment.
· Carry out appropriate risk assessments and implement changes where necessary to protect staff.
[i] a leading employment lawyer
[ii] S11 Equality Act 2010
[iii] S13 Equality Act 2010
[iv] S19 Equality Act 2010
[v] To include those not in his employment that may enter his premise
[ii] Waiting for tax.co