Is the law deliberately designed to make your life difficult? Some days it
is hard to believe it isn’t. Here two leading lawyers sound off about some
particularly topical bugbears. And, they warn, don’t expect things to get any
better…
Purpose is a two-faced god
Business constantly asks the law to give certainty. Increasingly it fails to
do so and many wonder why. One reason is that these days we are constantly told
that our laws should be interpreted "purposively". In other words,
look for what the legislator intended to mean and don’t worry to much about the
words actually used. This can be beneficial – it plainly makes the law less
rigid – but it is not a good recipe for certainty. This is particularly so when
there are different views as to the chief purpose of a particular law. Purpose
can vary with the perspective of the onlooker and this can foul things up for
everyone.
Take an example from The Transfer of Undertakings (Protection of Employment)
Regulations. Many people buying businesses plan changes to increase efficiency
and profitability. Most of these changes will be "measures" within
European and domestic law. Since 1981 the law has required measures to be the
subject of consultations with employee representatives. Employers are required
to consult "with a view to reaching agreement".
It seems from this that the legislator would take a benign view when
negotiations take place and result in an agreement being reached. In other
words the purpose of this law is to encourage agreements. What could be better
than employers and employees considering the future of a business together and
agreeing a way forward?
Then see what the judges did with this law. According to the ECJ and the
House of Lords, any agreements reached by employees in these consultations are
not binding. The judges’ reasoning is that, in their view, the principle
purpose of the directive is to protect employee’s rights. Apparently, employees
need protection so much that their elected representatives or trade unions
cannot be trusted to look after them when a business changes hands, even if the
new deal leaves employees better off. So, like Janus, purpose seems to be a god
that looks in two directions at once.
Many will ask: why bother to consult if no agreement can be relied upon?
Because, to add insult to injury, you will be sued if you don’t. The law says
that you may have to pay up to 13 weeks’ pay to each affected employee if you
do not consult. Remember, too, what may have to be done to begin consultation.
If a workplace has no recognised trade union (and three-quarters of workers in
the UK are not in trade unions) or no representatives exist, then elections
must be held to identify them.
The trouble here is that no one has been able to cut through the morass of
good intentions and settle on a sensible balance of interests. In 1998 the DTI
tried to persuade European legislators to allow representatives to do deals for
employees without success. In the end everyone is left to muddle through
despite the law – all because the judges and legislators cannot agree on its
purpose. Fear the worst: there is much more where this came from!
Stephen Levinson is a partner at KLegal, the law firm associated with
KPMG
Guilty until proven innocent?
Handling a sexual harassment claim is one of the most difficult problems
facing employers. The sensitive nature of such complaints, the potential for
unlimited compensation and above all the difficulty in balancing the rights of
the victim and the alleged harasser while determining the issues, means even
the most experienced human resources manager must tread carefully.
The latest Equal Opportunities Review survey reveals that compensation in
sex discrimination cases averaged £7,208, representing only a 5 per cent
increase over the previous year. This contrasts with an increase of no less
than 65 per cent in compensation in race discrimination cases now running at an
average of £9,948. There were only 206
sex discrimination cases which resulted in compensation awards and the
statistics suggest that sexual harassment which, after all, only represents a
part of the discrimination total, is, at least in terms of financial
consequences for employers, small beer.
However, the practical experience suggests the reality is rather different.
The great majority of cases settle, and no figures are available which give
either the numbers or the compensation paid. The true cost to the employer
includes absences through ill health, management time spent in investigation,
compensation paid to victims, costs of replacing staff sacked for harassment
and, of course last but not least, lawyers’ fees.
If identifying harassment is sometimes difficult, determining liability can
also be complex. The "strict liability" test raises the spectre of
employers being liable for the actions of employees in the course of their
employment. Employers will be held liable for sexual harassment about which
they were informed but which they did not seek to remedy. But what if the employer
does not know about the harassment? An employer is still potentially liable for
this because the law actually states that the employer is liable for a
discriminatory act by an employee "whether or not it was done with their
knowledge."
There is no doubt that sexual harassment can blight the lives not only of
victims, but also those wrongly accused. While it is not always easy to form a
view on the rights and wrongs of a particular case, I am confident I have
encountered instances where a relatively junior employee has "played the
sexual harassment card" in an attempt to wreck the career of a senior
considered, for one reason or another, to be an enemy. No smoke without fire is
an all too common reaction. It is vitally important that the investigation process
will not only uncover sexual harassment where it takes place, but also those
who make wrong accusations who should, of course, themselves then be subject to
disciplinary action.
The position under UK law is that the onus of proof always remains with the
person alleging sexual discrimination albeit, where less favourable treatment
is established and not explained, the court or tribunal is permitted to draw an
inference of discrimination. This is all set to change under a European
Directive on the burden of proof in sex discrimination law. The UK has until 22
July to comply. The directive requires that when people establish facts from
which it may be presumed there has been direct or indirect discrimination, it
shall be for the employer to prove that there is no breach of the principle of
equal treatment.
It might be thought this would have no obvious application in sexual
harassment. What facts have to be established in order for there to be a
presumption of discrimination resulting in a reverse of the burden of proof?
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This is not an easy question. If special attention given to an individual
was shown, would it then be presumed that that was on account of sex? Would
that create a situation where the burden passed and any doubt had to be
resolved in favour of the person alleging sexual harassment? How would that stand in relation to the
Human Rights Act? These are all difficult questions but at the very least, the
burden of proof directive can only encourage sex discrimination claims
including those relating to harassment.
Anthony Fincham is employment partner at CMS Cameron McKenna
