Working wonders

9 November 2011 - the pride of Mr Brodie Clark

Brodie Clark, the former chief of the UK Border Agency, has indicated that he intends to lodge a claim in the employment tribunal for constructive dismissal. His statement, released via the FDA Union, sounded as if it had been intentionally dipped in TCP to sting the emergent wounds of the Home Secretary.

Mr Clark will probably say that the acerbic comments made by Theresa May in the House of Commons on 7 November amounted to a fundamental breach of contract by his employer (the UK Border Agency is an executive agency of the Home Office), and that he resigned in response to that breach. His statement specifically referred to his employer having disregarded his right to reply 'in favour of political convenience". He denied May's claim that he had improperly relaxed passport checks in order to manage growing airport queues. Mr Clark will have been advised to resign promptly to negate any argument that he has waived any breach, and chosen to affirm the contract.

Mr Clark may be asked to give evidence to the Home Affairs Committee, and his evidence may prove to be an interesting warm-up to a dramatic employment tribunal face-off, with Theresa May (possibly giving evidence in person), the Home Office and the treasury solicitors in one corner, and Mr Clark, his union and whichever firm of solicitors he or his union instruct in the other. His legal team will be carrying out a careful analysis of the words that Theresa May used in parliament and the Home Affairs Committee about Mr Clark, and a full review of publically available official reports.

The Home Secretary's comments coincided with the publication of a Home Affairs Committee report into the work of the UK Border Agency (for the period April - July 2011), which included a table listing Mr Clark's salary as £130,000-£135,000 per annum, with a bonus range of £5,000 - £10,000. Mr Clark will be under a duty to mitigate his loss.

If he does issue a claim for constructive dismissal then he may have to wait many months before he sees the inside of an employment tribunal, as the tribunal service is bursting at the seams.

Employment lawyers will watch with interest to see whether the government suggests mediation or enlisting ACAS, as a means of trying and resolve this dispute - the processes which have been superciliously endorsed by the coalition as cheaper alternatives to employment tribunals - or if the government will put its mediation rhetoric to one side and rigorously defend any claim(s) from Mr Clark.

23 August - Employment the American way

More than 6,000 lawyers descended on the vibrant city of Toronto for the 2011 American Bar Association annual meeting between 4 and 9 August (to the evident delight of many a taxi driver, and restaurant owner!) for a jam-packed schedule of continuous education seminars, legal discussions, networking and debates.

The flexible format of the conference (which was spread over several different venues from the Metro Toronto Convention Centre to many top-end downtown hotels) allowed delegates to pick and choose which seminars to attend. An unintended side effect being that some smaller sessions appeared to be scarcely attended at the beginning while delegates navigated their way between venues, which in some cases were quite far apart.

The seminars provided a unique opportunity for UK lawyers to spot developing trends, and learn from the experiences of US and Canadian lawyers, academic scholars and in-house counsel. The wide-ranging seminars emphasised the many similarities (and shared difficulties) in practice and procedure between our legal systems, on topics such as: social media use in the work place; cross-border disputes; discrimination on the grounds of religion or belief; cloud computing; enforcing restrictive covenants (the brilliantly named: 'Wanna Keep a Secret, Eh?'); and the use of mediation to settle disputes.

To me the most thought-provoking seminars were a presentation on how to list a company on the Toronto Stock Exchange, and an 8am session entitled 'Crisis Management, Tales from In-house Counsel: How to React, Plan and Survive a Crisis'; which boasted a distinguished panel of in-house counsel, practitioners, and a PR expert. The general counsel of the Toronto Transit Commission, Brian Leck, gave an honest and frank overview of how to deal with mass litigation following a high-profile subway crash, while remaining sensitive to those who have been injured, and emphasised the need to develop a media plan and tackle the media head on.

New Law Society president John Wotton, and international policy adviser (Americas and Caribbean), Charlotte Ford, were flying the flag for their members back in the UK. Mr Wotton gave a presentation to American Bar Association's Commission on Ethics about how alternative business structures (ABS), with strict controls, can provide new opportunities for the legal sector in the US. He also took the opportunity to forge closer links with senior representatives of international markets who are opening up access to legal services, such as Korea, which may be of benefit to members in England and Wales.

The annual meeting culminated in the prestigious president's reception, hosted by outgoing ABA president Stephen N Zack, at the Royal Ontario Museum (ROM). Where ABA delegates enjoyed exclusive use of one of Ontario's finest museums, along with intriguingly named cocktails (some of which were served next to dinosaurs and stuffed bears!), a sumptuous bonanza of food, and live music.

7 July 2011 - The battle is yet to begin for News of the World workers

I am still computing the impact of James Murdoch's (deputy chief operating officer chairman and CEO, international, News Corporation) recent announcement that he is going to close the News of World (NOTW) newspaper on the many hundreds of NOTW workers over in Wapping.

It is worth remembering that the announcement will not only have a direct effect on the journalists, who are employed by, or on the periphery of, the soon to be defunct newspaper, but also printers, programmers, photographers, couriers, drivers - the list goes on.

Instead of the mea culpa statement that one would expect here are a few highlights of Murdoch Jr's statement, with my editorial comments in square brackets - please note that I have deliberately not quoted from the aggrandised history of the newspaper:

'I have important things to say about the News of the World and the steps we are taking to address the very serious problems [ed - criminal investigations] that have occurred.

"It is only right that you as colleagues at News International are first to hear what I have to say and that you hear it directly from me.' [ed - albeit via email]

"'¦The News of the World is in the business of holding others to account. But it failed when it came to itself..

"...The paper made statements to parliament without being in the full possession of the facts. This was wrong.

"The company paid out-of-court settlements approved by me. I now know that I did not have a complete picture when I did so. This was wrong and is a matter of serious regret'¦'

"We have also admitted liability in civil cases. Already, we have settled a number of prominent cases and set up a Compensation Scheme, with cases to be adjudicated by former High Court judge Sir Charles Gray. Apologising and making amends is the right thing to do.

"Inside the company, we set up a Management and Standards Committee that is working on these issues and that has hired Olswang to examine past failings and recommend systems and practices that over time should become standards for the industry. We have committed to publishing Olswang's terms of reference and eventual recommendations in a way that is open and transparent.'

'You may see these changes as a price loyal staff at the News of the World are paying for the transgressions of others.'

Is this a redundancy situation? Broadly speaking, redundancy situations fall into three categories:

 business closure (closure of the business altogether);

 workplace closure (closure of one of several sites, or relocation to a new site); and

 diminished requirements of the business for employees to do work of a particular kind.

The leading case on establishing whether an employee has been dismissed by reason of redundancy derives from Safeway Stores plc v Burrell [1997] IRLR 200 (EAT), which established a three-stage test for applying section 139 of ERA 1996:

1. was the employee dismissed? If so,

2. had the requirements of the business for employees to carry our work of a particular kind ceased or diminished (or did one of the other economic states of affairs in section 139(1) exist)? If so,

3. was the dismissal of the employee caused wholly or mainly by the state of affairs identified at stage 2 above.

Only if the answer at all three stages is 'yes' will there be a redundancy dismissal.

A more detailed analysis of what has happened with the NOTW will follow when the facts come to light.

Employment related claims

Surely the employment related claims that could be most relevant (and feared by the board of directors) are whistleblowing claims, as there is no financial cap on compensation in whistleblowing claims, and no requirement for a minimum period of service. The latter may be particularly relevant as it has been reported that several members of staff have joined the paper relatively recently; as acknowledged in James Murdoch's statement: 'Many of you, if not the vast majority of you, are either new to the company or have had no connection to the News of the World during the years when egregious behaviour occurred.'

There are two levels of protection for whistleblowers:

1. The dismissal of an employee will be automatically unfair if the reason, or principal reason, for their dismissal is that they have made a 'protected disclosure'.

2. The Public Interest Disclosure Act 1998 (PIDA), also protects workers from being subjected to any detriment on the ground that they have made a 'protected disclosure'.

However, bringing a claim for whistleblowing is hard as there are many hurdles that one have to be overcome:

1. There are a number of requirements for a 'qualifying disclosure'.

2. The worker must make a disclosure of information.

3. The information must relate to one of six types of 'relevant failure'. Based on media reports the categories for wrongdoing in this situation could potentially be (and I stress here that this is based on media reports and allegations):

 Criminal offences (section 43B(1)(a), ERA 1996).

 Breach of any legal obligation (section 43B(1)(b), ERA 1996).

 Miscarriages of justice (section 43B(1)(c), ERA 1996).

 The deliberate concealing of information about any of the above (section 43B(1)(f), ERA 1996).

4. The worker must have a reasonable belief that the information tends to show one of the relevant failures.

5. The disclosure must also qualify as a protected disclosure.

What about terms of confidentiality in their employment contract?

Many potential whistleblowers are concerned about breaching the confidentiality provisions in their existing employment contracts. However, section 43J(1) of ERA 1996 renders contractual terms void insofar as they purport to preclude the making of a protected disclosure.

News Corporation

The corporate profile section of the News Corporation website explains that as of 31 March 2011 News Corp had total assets of approximately US$6bn and total annual revenues of approximately US$3bn.

In view of the many tentacle of News Corporation, of which News International is a subsidiary, it is likely that there will be efforts to find suitable alternative employment for NOTW staff elsewhere.

My cynical prediction is that the NOTW will rise from the ashes, after a management buyout, with white knight backing with a manifesto to draw a line under the hacking scandal, that has appalled everyone. If that is the case and the business is transferred to a new owner then the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) may transfer the employees' employment to the new owner automatically, meaning that the employees will not be redundant or entitled to redundancy payments.

My suspicion is that The Sun will become a seven day a week newspaper and then perhaps the NOTW will be revived following a campaign by a sister newspaper (or a PR and marketing company) to revive this 'iconic British brand', like a chocolate bar from the 90s '“ creating an amusing sense of competition between two red tops.

I hope for the sake of the NOTW journalists that there are alternative positions out there; and I hope that the National Union of Journalists will show its teeth.

17 June 2011 - The Perils of social media in the workplace

Employment lawyers and HR practitioners (and a recent juror!) will already be aware of the perils of using social media.

A fascinating judgment involving the use of facebook in the workplace was recently handed down by Liverpool employment tribunal '“ Miss K C Preece v JD Wetherspoons Plc (case number 2104806/10); which reiterates the need for stringent, and well-crafted, employment contracts, social media and IT use policies.

Miss Preece was employed by a well-known pub chain as a shift manager from 18 May 2009 until 14 June 2010, when she was dismissed for gross misconduct for posting comments on Facebook during work hours.

In May last year Miss Preece (and her colleague Mr Deacon) were working at the Ferry Boat Pub in Cheshire, when Miss Preece was subject to verbal abuse and physical threats by a group of people, particularly customers known as Brian and Sandra, who were subsequently asked to leave. Another man, Mr Deacon, then reported Sandra for drink driving.

Later that evening Miss Preece received several telephone calls at the pub from a person claiming to be Brian and Sandra's daughter, which included a threat in the first call to 'get your f'ing P45 ready because you're out of here'. Instead of calling the 24-hour emergency situation support number, Miss Preece took to Facebook to vent her anger, leading to the fulfilment of the prophecy.

Miss Preece's first discourse on Facebook involved using the colloquial expression inviting someone to depart sexually. It was noted that Miss Preece had 646 Facebook 'friends' in total, although she believed that she was communicating to a maximum of 40-50 close friends at the time. In response to comments from another 'friend' she posted that she hoped 'her hip breaks'. This led to a complaint to the customer services department from the daughter of one of the main protagonists, who highlighted that these very public comments were offensive, noting that her mother had a hip replacement in the past.

Miss Preece was invited to a disciplinary meeting to discuss allegations that she had failed to comply with the company email, internet and intranet policy: specifically blogging which was found to lower the reputation of the organisation, bringing the organisation in to disrepute, and committing acts outside of work which had an adverse bearing on her suitability for the job. At a disciplinary hearing Miss Preece explained that she had lost control of her emotions, and that she 'understood that Facebook is the wrong place to vent my anger and frustration'. She was subsequently dismissed for gross misconduct.

This decision was upheld on appeal by an area manager who believed that Miss Preece wrote the postings while on shift, and found that a number of the comments were abusive and inappropriate and that she had even named customers.

Miss Preece subsequently issued a claim for unfair dismissal (and an additional claim for non-payment of a bonus as an unlawful deduction from wages claim). JD Wetherspoons denied the claims on the basis that it had reasonable grounds to sustain the belief that Miss Preece had committed an act of gross misconduct; it had carried out as much investigation as was reasonable, and the sanction fell within the range of reasonable responses.

The tribunal held that whatever Miss Preece's belief about the privacy of her communications they were in the public domain. The tribunal also took the view that JD Wetherspoons actions had been justified under article 10(2) in view of the risk of damage to reputation because it was clear from the communications, when read as a whole, that Miss Preece was discussing work and specific customers who had been barred.

The tribunal found that Miss Preece had not been unfairly dismissed and her claim for unlawful deduction from wages was dismissed.

There are many lessons to learn from this case. All social media users should immediately check their personal privacy settings, and think before they type in the future; all companies should have well-drafted social media policies, employment contracts, and disciplinary procedures setting out non-exhaustive lists of examples of gross misconduct.

Those responsible for drawing up such polices should carefully consider the circumstances where unauthorised use of social media can result in disciplinary action being taken. Such as when employees get caught using Facebook to vent their anger about colleagues or customers; posting confidential information, or by posting messages or photos of their fun and frolics after calling in 'sick'. There are other interesting cases about social media, Pennwell Publishing (UK) Ltd v Ornstein [2007] IRLR 700 being a good example concerning LinkedIn.

I am aware of another situation where an employee had signed a compromise agreement with stringent confidentiality provisions (only permitting communication of the terms to professional advisers and immediate family) and that person then posted an update on their Facebook page setting out a précis of the express terms of the agreement (including the amount of compensation) and also a, shall we say, direct and frank opinion of their former employer '“ forgetting that a former colleague was a 'friend' on facebook. The compromise agreement having been signed, and this being a breach of an express warranty in the agreement, the settlement monies were promptly returned to the employer!

6 April 2011 '“ Delving deeper

The Tribunals Service has recently published quarterly statistics for 1 October to 31 December 2010 for all types of tribunals '“ including employment tribunals.

The figures show that the number of employment tribunal receipts (i.e. claims) between 1 October and 31 December 2010 was 39,900 '“ a fall of 51 per cent compared with the same quarter of 2009-10, but two per cent higher than for the third quarter of 2008-09.

Many busy practitioners like myself will be surprised at this purported decline. However, if you delve a little deeper (most notably in the footnotes) there appears to be a substantial chunk of data missing '“ as such many practitioners may be reaching to put their copies in the recycling bins.

Claims to the employment tribunal are classified into two broad categories '“ singles and multiples. Multiple cases are where two or more people bring cases, involving one or more jurisdiction(s) usually against a single employer but not necessarily so, for instance in TUPE cases, and always arising out of the same or very similar circumstances. As a multiple, the cases are processed together.

The majority of the recent drop in receipts was for those multiple claims, which went down by 62 per cent between the third quarters of 2009-10 and 2010-11 (although 13 per cent higher than for 2008-09). The number of single claims fell by 11 per cent '“ from 17,400 between 1 October and 31 December 2009 to 15,500 for the same period in 2010-11.

The new statistics have to be seen in the context of last year seeing a huge peak in employment tribunal claims '“ indeed the highest amount ever recorded '“ and also the very high, and variable, numbers of resubmitted airline cases in the third quarter of 2009-10.

However, the statistics must also be viewed in reference to these caveats:

1. The statistics themselves are described as being 'provisional' (with a lower case p in the statistical charts '“ which is notably absent elsewhere!)

2. There appears to be substantial chunk of data missing.

As such the figures themselves may be of limited use.

Breakdown of jurisdictional mix

On the up

• Age discrimination went up significantly '“ from 1,100 to 2,900
• Those for suffering a detriment/unfair dismissal '“ up by 47%
• Pregnancy and sex discrimination up by 27%
• Discrimination on the grounds of religion or belief continues to gradually rise over the last three quarters '“ Q.1: 200; Q.2: 210; Q.3: 240

Taking a fall

• Working Time Directive down 60%
• Equal pay down 15%
• Redundancy, breach of contract and unfair dismissal, down 15%

The statistics also include a brief analysis of outstanding case loads, which indicates the extensive level of pressures on the tribunal system (it is assumed that this is the entire tribunal system and not just employment tribunals although this is not made clear). At 31 December 2010, the caseload outstanding was 722,400, with 58 per cent of the current caseload outstanding being multiple ET claims.

It would be interesting to compare the statistics from ACAS (and their pre-claim conciliation service) for the same period.

Missing data?

The statistics explain that, historically, employment tribunals' statistics have been extracted from the ETHOS case management system. However, a pilot replacement system was developed (Caseflow). The Caseflow system has now ceased and a reversion is taking the place of the former ETHOS system '“ it is not clear why this is, or how much the trial actually cost.

The report states that 'for a short period, complete data has not been available for Nottingham and Leicester'. Hidden in a footnote is this statement: 'The number of jurisdictional claims for the first and second quarters of 2010-11 exclude Nottingham and Leicester ET data '“ data for Nottingham and Leicester contained within Q3 figures for 2010/11 may be incomplete.'

The missing data should be the biggest caveat to the reliability of the statistics (which should be emphasised now before they seized upon for political purposes) as figures from two of the top 15 cities in the UK by size are bound to make a significant difference.

The full breakdown of jurisdictional claims can be found on page 26 '“ and I recommend that all practitioners have a look at the charts to see how the levels of claims fluctuate throughout the year.

27 January 2011 '“ Imminent change

The launch of the 'resolving workplace disputes' consultation by the Department for Innovation, Business and Skills (BIS) is described as being the next step in the government's comprehensive review of employment laws. In reality the consultation sketches out a roadmap to fundamentally change the current tribunal system into a more business-friendly model.

Proposals include charging fees, increasing the cap on costs awards, increasing the level of deposit awards and removing payments for the expenses of witness. These proposals will not go down well with claimants and unions alike, who will no doubt view them as putting barriers in the way of access to justice.

Some of the wide-ranging consultation proposals will be welcomed with open arms, including:

• Encouraging parties to resolve disputes earlier (through Acas, and implicitly through mediation).
• Making strike-out powers more flexible, with 'procedural safeguards to be built in'.
• Allowing employment judges to be able to issue a deposit order at any stage in the proceedings.
• Introducing a mandatory requirement for claimants to provide a statement of loss in the ET1.
• Shortening tribunal hearings by taking witness statements as read.

The more controversial aspects of the consultation include:

• Introducing 'fee charging mechanisms'. This is not set out in any detail; however, the consultation includes the example of 'where claimants lodge claims (and respondents choose to counterclaim) and/or for parties in claims that proceed to full hearing'. It does not seem to be envisaged that any fee will be charged when a respondent submits its ET3.
• Extending the qualifying period for unfair dismissal claims from the current one year to two years. The government estimates that this will reduce the level of claims by 3,700 to 4,700 a year.
• Introducing legal officers to deal with case management. The consultation seeks views on the 'qualifications, skills, competences and experience we should seek in a legal officer'. Practitioners should note that the consultation also seeks views on the type of interlocutory work (which the consultation considers 'could be undertaken by any competent person') that might be delegated, so clearly this proposal will be expanded. Under the proposal legal officers could be: experienced administrative officers, qualified lawyers employed as registrars or legal assistants, or a 'junior' rank of judge or judicial officer.
• Introduce a rule whereby either party can make a formal settlement offer to the other party, or parties, as part of formal employment tribunal proceedings, 'backed by a scheme of penalties and rewards'. The consultation proposes a system similar to the 'Scottish courts' judicial tender model' (see how many English practitioners put that search term into Google!) and not a part 36 model.
• Removing payment of witness expenses. The government's argument is that this will lead to a reduction in the duration of some hearings, as 'only witnesses that are strictly necessary will be called'. Surely it is simply intended to save government money. It is unlikely to be the main consideration for witnesses; I suggest that a greater deterrent to witnesses attending a tribunal hearing would be the necessity to take time off work to give their evidence.
• Increasing the current cap on the level of costs that may be awarded from £10,000 to £20,000. The consultation emphasises that 'it is not our intention to move towards a general costs-recovery policy'.
• Reviewing the formula for calculating employment tribunal awards and statutory redundancy payment limits.
• Increasing the current level of the deposit which may be ordered from the current maximum of £500 to £1,000.
• Extending the jurisdictions where judges can sit alone, allowing 'more efficient use of lay member resource' (it is noteworthy that this is not defined). Subject to discretion, unfair dismissal cases to normally be heard by an employment judge sitting alone. This may lead to a two-tier level of tribunal judges, and does little to address the reality that many unfair dismissal claims often feature as just one strand of several claims. The annual statistics published by Tribunal Service show that for 2009-10 the average number of jurisdictional complaints per claim was 1.7. Could this be the beginning of the end for lay members?
• Proposing that claimants submit key details of their dispute (using what will amount to a shortened version of the ET1 claim form) to Acas within the relevant time limit.

It is proposed that Acas will have no role in determining whether the claim is in time or not; they will, however, date-stamp the form on receipt, and that will subsequently allow the tribunal to decide whether to accept or reject the claim. This dual process is likely to confuse many businesses.

The consultation envisages that the clock (for the relevant time limit) will stop once the claim is received by Acas and that there will then be a statutory period of time (they propose one calendar month) for Acas to attempt to conciliate the dispute.

Resolving disputes

The amount of claims lodged at the employment tribunal for the period 1 April 2009 to 31 March 2010 show that there has been a 56 per cent increase in claims from 151,000 for the period 2008/09 to 236,100 claims in 2009/10; although it should be noted that those figures include multiple claims.

The role of Acas

The aspiration in the consultation to encourage employers and employees to work together to resolve workplace disagreements should be welcomed. Workplace mediation will most likely be an area of substantial growth. The role of Acas should rightly be heralded as a successful way of resolving disputes, as 70,600 claims were Acas conciliated last year.

The government intends to provide all potential claimants with access to pre-claim conciliation by Acas '“ free of charge to all those who want it '“ and for Acas to provide claimants with information about what they can expect from a tribunal, including the time involved and what a tribunal might award.

The key issue will be whether Acas has adequate resources to deal with a likely surge in demand. Perhaps the proposed tribunal fees will pay for the service to be expanded? In my own busy employment practice it is increasingly evident that Acas case workers have an almost insurmountable level of cases to deal with.

9 December 2010 '“ All equal

The government's new equality strategy published earlier this month marks a turning point reflecting that the word 'equality' has been misused and has come to mean political correctness, social engineering, form filling and box ticking. The strategy moves away from legislation, and increased regulation, which is 'not a panacea' and has 'produced diminishing returns', according to home secretary Theresa May.

The message is that legislation is only part of the approach, and that a 'voluntary approach', specifically on gender pay reporting (with an emphasis on companies with 150 or more employees in the private and voluntary sector) will need to be developed, which the strategy notes that they expect and want to work. Annual reviews will be carried out to consider the number of companies releasing information, and its quality, under the voluntary approach to assess its success and to review whether alternatives are required; including using a mandatory approach through section 78 of the Equality Act 2010. In the interim, section 78 will not be commenced, amended or repealed.

The strategy focuses on two principles of equality '“ equal treatment and equal opportunity '“and the government says it intends to lead by example. This will include promoting transparency and good practice in the public sector, such as the new specific duties made to support the public sector equality duty which will require large public bodies to be transparent about the make-up of their employees. Other examples include improving careers advice for girls, women, ethnic minorities, disabled people and others who can be disadvantaged by occupational segregation; setting a new 'aspiration' that 50 per cent of all new appointments to public boards will be women by the end of the current parliament, and promoting flexible working as sensible business practice rather than special treatment.

I expect that this strategy is only the first part of a swath of fundamental changes to the equality regime, and employment practices, that we can anticipate from the coalition government. The strategy refers to a future consultation which will set out the government's approach to how they will take 'strong action' where there is evidence of discrimination against women on pay. In addition, Lord Davies has started a review into the lack of female representation on corporate and business boards, with a report expected early next year. The government has also said it will look at how the new universal credit can support non-traditional work patterns such as 'mini jobs' as the first step back into work. Finally, the default retirement age will be phased out, to be accompanied by a full public consultation on exceptions to the ban on age discrimination.

The voluntary schemes may create something of a headache for solicitors and HR professionals. There are some ambiguities '“ such as the comment that the government will work with regulators and business trade organisations to 'shine a light on those who are promoting equality well and those who are not doing well'. Does this mean that those who do well are to be rewarded, or those who do not follow the '“ supposedly '“ voluntary scheme will be punished?

There is an ambiguous commitment from April 2011, to allow employers, on a permissive basis, to apply 'voluntary positive action' in recruitment and promotion processes when faced with two or more candidates of equal merit, to address under-representation in the workforce. The strategy document is, however, keen to point out that voluntary positive action does not mean 'quotas', and that 'positive discrimination is not acceptable and is unlawful'. The immediate concerns for solicitors are that many clients may make decisions to address perceived imbalances in the workplace without taking legal advice about possible discrimination claims. Clear government guidance will be required.

4 November 2010 - Ambiguities in the Equality Act

The Law Society has recently raised concerns over an ambiguity (or more correctly errors) in the drafting of section 147 of the Equality Act 2010, which came into force on 1 October 2010. This drafting error is likely to have an immediate effect on the use and effectiveness of compromise agreements (now referred to as compromise contracts) made under the Equality Act.

The concern of the Law Society, which is echoed by many employment law practitioners, is that section 147 of the Act does not mirror the definition of who is considered to be an 'independent adviser', as set out in the Employment Rights Act 1996 (ERA). The ERA provided that a lawyer will not be independent if he is employed by, or is acting for, the employer or associated employer.

Section 147 sets out the requirements that must be fulfilled for a qualifying compromise contract to settle claims arising under the Act. Most important is that the complainant must receive advice from an 'independent adviser' about its terms and effect. However, section 147(5)(d) of the Act provides that an independent adviser cannot be 'a person who is acting for' a person who is a party to the [compromise] contract or complaint; or someone connected to that person.

This leads to the absurd position, highlighted by counsel's advice to the Law Society, (referred to in the press release) that a court or tribunal would construe section 147(5)(d) as meaning that a solicitor who was instructed by the employee before the production of the final contract for consideration, or who has acted in any way for the employee during the course of their complaint '“ even in a supporting role to the lead adviser perhaps as holiday cover '“ will be precluded from acting any further as an independent legal adviser in that compromise contract (www.lawsociety.org.uk/newsandevents/news/view).

The Law Society has gone to great lengths to seek clarity on the interpretation of this issue including instructing counsel, requesting an urgent meeting with the Government Equalities Office, and even notifying the home secretary. Advice from counsel also indicates that a solicitor to whom the client was referred solely for the purpose of advising on the agreement would not be able to provide such advice. I hope that a legislative amendment can be made sooner rather than later to correct the drafting errors.

The Government Equalities Office (GEO) issued a press release at the end of October to state that it is not a proper reading of section 147 to suggest that the complainant's adviser is debarred from being the qualified adviser, because the section has to be 'read as a whole' (www.equalities.gov.uk/default.aspx?page). The official view of the GEO is that 'the situation that existed prior to passage of the Act' remains unchanged and, by implication, that a solicitor who had advised a client in respect of an action would also be able to provide advice on a compromise agreement. This is unlikely to provide much comfort to practitioners before the matter has been considered by parliament or an employment judge.

An obvious consequence is that compromise agreements will not be as widely used and ACAS will see a huge peak in demand for assistance with conciliation. Many will question whether ACAS has the means to deal with such further demands on its already stretched services.

A practical matter, which may have dipped below the radars of some practitioners, is the payment of legal fees. It is usual for compromise agreements to include a clause providing that the employer will make a contribution towards the legal fees of the employee for the purposes of receiving advice about the terms of the agreement or entering into the agreement.

For taxation purposes such fees are usually payable on receipt of an invoice addressed to the employee but marked payable by the employer (www.hmrc.gov.uk/specialist/esc.pdf). Payments of such contributions are often conditional upon the employer receiving a signed compromise agreement from the employee and/or a signed independent adviser's certificate.

Some employers may try to argue that they do not have to pay for the legal advice if the compromise agreement itself has not been concluded and as a result they have not received the signed compromise agreement and/or adviser's certificate. On a similar note practitioners may wish to check their client care letters (and terms and conditions) to ascertain that any costs estimate provided to the client does not merely record that the employer's contribution towards legal fees (as per the terms of the compromise agreement) will be sufficient to complete the matter, without any further contribution from the client, and that it expressly states that the client is primarily responsible for paying the legal fees.

13 September 2010 - To strike or not to strike

On an almost weekly basis we hear the foreboding news that cuts to the public sector will bring co-ordinated industrial action and civil unrest. The perpetual call to arms is likely to reach a crescendo by the end of the TUC conference taking place in Manchester this week.

But it's not all doom and gloom as a joint announcement today (13 September) by ACAS, the employment relations service, and the TUC espouses the virtues of mediation, and may point towards a new approach to resolving disputes by the union movement.

ACAS and the TUC have published a new 18-page guide for trade union representatives which explains how mediation can complement their role in helping to avoid costly disputes (ACAS-TUC mediation guide for union representatives). The introduction points out that while not offered as a panacea, mediation can be a way to avoid the potentially disruptive effects of drawn-out conflict.

The new guide explains what happens during a mediation, the role of representatives in mediation and how to support members, working with employers to set up mediation arrangements, how mediation fits with other workplace procedures and agreements, and using trade union reps as mediators.

The chair of ACAS, Ed Sweeney, noted the change in direction: 'In the past there has been some reluctance to use mediation within the union movement as it was seen as a possible barrier to justice. Despite some apprehension, we are increasingly seeing evidence of trade unions recognising the benefits it can bring to their members."

It is good that the virtues of mediation are being promoted by the TUC and ACAS; unfortunately the new guidance sends some mixed messages. The comment that mediation 'can also be used to rebuild relations after a member of staff has been through a disciplinary or grievance process', points towards mediation being seen as a tool for reconciliation after each disciplinary or grievance process.

In a Utopian world that might be an ideal way to restore the relationship between the parties, but mediation should not be an automatic add-on to the end of the existing grievance and discipline procedures (as can be inferred) as such a proposal would bring an unjustifiable amount of pressure on management time and resources; particularly for SMEs that do not have a dedicated HR department.

I also find it difficult to reconcile the declaration that mediation can be used 'at any point in the conflict cycle', with the comment later in the guidance that mediation 'should only be used where agreed procedures have been exhausted or the parties agreed to put them in abeyance', which appears to indicate that mediation is seen as a process of last resort.

Furthermore the declaration that mediation is 'morally binding and has no legal status (unless the parties so desire)', does not clearly explain the benefits of setting out the fruits of the labour of the mediation in an agreement between the parties.

The section 'Can trade union representatives be mediators?' promotes the skills of trade union representatives to employers who are looking to recruit internal mediators. It says that where trade union representatives do act as mediators they should 'avoid mediating for individuals who they also represent'. In fact what they should clearly be stating here is that if you are an internal mediator and you are asked to mediate in a dispute involving an individual that you already represent, then you will not be able to act as a mediator as there will be a clear conflict of interest.

Many business leaders affected by the Tube strikes last week will no doubt be watching with interest to see if the scheduled walk outs (on 3 October, 2 November and 28 November) will go ahead, or whether a new mediation-focused approach will help the parties come to a workable solution.