Archive for the 'Uncategorized' Category

At the end of last week the Government published draft guidance on the Agency Workers Regulations 2010. For a two week period, everyone is being asked to suggest ways in which the guidance can be improved and I’d urge everyone to take a look at it and see if it makes sense to them.

On this issue I am less of a detached and cynical observer of Government publications than usual. For the past few months I have been part of a group that the officials at the Department for Business have been working with to help draft the guidance and make it as user friendly and accurate as possible. A number of us – some independent like myself; others representing either temporary work agencies, hirers, trade unions or employers bodies have been meeting regularly at the Department to discuss particular aspects of the Regulations and make suggestions as to how the guidance can most helpfully explain how the Regulations work.

This has been a fascinating process and I want to pay tribute to the BIS officials who have worked so hard to produce the draft that was published last week. These are complicated and controversial Regulations and the meetings often reflected that, with lots of lively (always good humoured) debate and disagreement. Usually we were working with an initial draft produced by the Department which we would then pick apart and criticise, making suggestions for how it could be improved, or re-written. I know from my own experience that it can be pretty dispiriting to work hard drafting something and then have it casually pulled to pieces by others, but if the officials were frustrated by the process, they didn’t show it. All constructive suggestions were welcomed, and the guidance was re-drafted (often more than once) to take account of them.

In short the whole process has left me very impressed with the skills and patience of the civil servants involved and with the knowledge, experience and professionalism of my colleagues on the working group. It was a pleasure to work with them all and I’ve learnt a lot from the exercise. I’m sure the guidance can be improved further, and that’s what this final consultation is about, but I wouldn’t want anyone to think that it had been produced in some ivory tower by a detached civil servant speaking from on high.  An awful lot of work has been put into this guidance and if it doesn’t do the job then a lot of us have to share the blame for that.

Finally, it is worth emphasising that this is just guidance. Ultimately what matters is not what the guidance says but what the Regulations mean. Lots of stakeholders will have a particular view as to how the Regulations should be interpreted and will be disappointed or annoyed if the guidance is not sufficiently clear on that point. There are certainly areas where the guidance glosses over a difficult issue or is vague on a specific point. That is unavoidable where the Regulations themselves are difficult or vague. In the end, it is impossible to give coherent guidance on a fundamentally incoherent legal provision and the Regulations contain a couple of those. Guidance can’t solve that problem. On balance though, I hope that people will welcome the guidance that has been produced, and the process that led to it.

Darren Newman

I’ve spent the last couple of weeks studiously keeping out of an employment law argument. That’s not like me at all, but this one involves Duncan Bannatyne and I already have that T-shirt.

Now that the row seems to have run its course, however, I did just want to make a couple of comments about what happened because I think it has something important to say about what discrimination is and our attitudes towards it.

You can read all about the row here, but in brief it centers on the reporting by XpertHR* of an employment tribunal case: Williams v Bannatyne Fitness Ltd. This is not an important case (except to those directly involved). It’s merely an illustration, an opportunity to see how employment law gets applied by the tribunals in practice, as opposed to the more rarefied atmosphere of the Employment Appeal Tribunal or the Court of Appeal.

In this case the tribunal found that while the claimant had not been victimised and that the refusal to offer him any further hours of work was for genuine economic reasons rather than for any reason connected with his disability or his complaints, the employer had failed to make a number of reasonable adjustments in the way they handled his grievances and also failed to make an adjustment in the location of his pigeon hole.

The XpertHR report was a straightforward explanation of the facts of the case and the conclusions of the employment tribunal. I’ve looked at both the report and the tribunal decision itself and there are absolutely no grounds for complaint in the drafting of the report. It’s absolutely accurate.

There has been a bit more of a debate however about the headline to the report and the Tweet that linked to it. These stated ‘Bannatyne Fitness club discriminated against Thalidomide victim’. It’s been suggested that that is an inflammatory and even an unfair way of describing what happened.

I can see why some people would say so – but I disagree. First of all from a strictly literal and legal standpoint the phrase is technically correct. A failure to make reasonable adjustments is defined as discrimination in the Disability Discrimination Act 1995 (S.3A(2)) which applied in this case and in the Equality Act 2010 (S.21(2)) which will apply in any future cases. So the tribunal did find that Bannatyne Fitness Ltd had discriminated against a Thalidomide victim. That’s a fact. The tribunal may be wrong, of course, but until that is established on an appeal, XpertHR are entitled to report the tribunal’s findings. That’s what they do, after all, and the tribunal decision is a matter of public record.

The reaction of some people has been to say: ‘yes, but not really’. They point out that Bannatyne Fitness actually won on what may be regarded as the main aspects of the case. There was no victimisation, and the refusal to give him further work was not linked to disability. The suggestion is that the issues they actually lost on were minor – mere technicalities. The ‘real’ allegation of discrimination did not succeed, and the Tweet, and the headline to the article are therefore misleading.

It is certainly true that the claimant did not succeed in the part of his case to which the greatest amount of financial loss would have been attached – and may have come away from the case feeling disappointed with the outcome. The employer, on the other hand, might well have seen the outcome as a qualified win – which would no doubt explain their anger at the way in which XpertHR drew attention to the failure to make reasonable adjustments and came right out and labeled it as discrimination.

But it is! Reasonable adjustments are not some technicality, they are at the heart of what disability discrimination is all about. Refusing to move a pigeon hole so that someone who has no arms can reach it may sound like a minor matter, but that does not mean that it was minor or trivial to the individual affected. The same is true of the failures in relation to the handling of his grievance. The failures may have been a mere oversight, and there is no reason to believe that they were motivated by any sort of malice or hostility – but that is not the point. Discrimination is not about malice or hostility, it is about less favourable treatment and, in the case of disability, it is about making adjustments. If you fail in that then you are discriminating. That may be the sort of error that any employer can fall into – but that is why it is a good idea to report the finding – to help employers avoid making that sort of mistake.

As for the headline and the Tweet, well yes it is provocative to phrase things in that way. But I think it’s justified. Employers need to understand the importance of these issues and that even a simple oversight or a lack of common sense can lead to discrimination. Discrimination is not confined to the bad guys. Good employers can discriminate too if they are not careful. A lack of hostility to a group is no guarantee that you will not inadvertently discriminate and I think the headline ‘Bannatyne Fitness club discriminated against Thalidomide victim’ can help shock us into being more aware of that.

Darren Newman

*Since this is a bit of a contentious issue and in the interests of full disclosure, I should make it clear that I am a consultant editor for XpertHR. I’m not employed by them but I do have a close relationship with them and am naturally well-disposed towards their work. Nobody tells me what to think write or say, however, and this post reflects my personal view.