Archive for October, 2006

Liberty on the barricades

Published
by
NL
on 11 October 2006
in Legal Aid and job
. 0 Comments

Jonathon Freedland has an eminently sensible opinion piece in the Guardian on why legal aid matters and where Carter is a disaster. The article is clear and impassioned, but also sadly true in suggesting that this is unlikely to be an issue that leads to the barricades springing up on the boulevards. Delacroix’s Liberty, leading her class mixed band to freedom under the equal rule of law, would weep.

Civil legal aid takes a back seat again, though. Given the apparent dramatic increase in ‘middle class’ seekers after help and advice that the CAB has noted over the last few years, and that I have anecdotally heard about from local advice centres, perhaps a campaign about access to the law for civil matters might have a wider resonance than than has been thought.

The means test for civil legal aid has a bar set so low that large swathes of yer ordinary working stiffs can’t afford legal assistance. let alone representation. When a CFA isn’t appropriate and your insurance stiffs you, who you gonna call? I don’t know where I’d go and I’m in the business.
And as things are going, even those who pass the means test will have a hard time finding a provider.

The simple cry is that the law should therefore be cheaper. Maybe yes - but don’t blame the legal aid solicitors for putting the price up. They work for not a lot at all and have mostly got very good at doing alot with very little. But achieving miracles on bugger all is beyond possibility. Equal access to the law looks set to end not with a bang, but with a projected cost efficiency.

Mea Culpa, but not wholly.

Published
by
NL
on 11 October 2006
in job
. 0 Comments

Ok, so I’ve had to make an embarrasing addition to this post on the 5 year grace period for pay and holiday bonuses under the age discrimination regs. Pure laziness. No excuse (except I was knackered, overworked, blogging on a combination of wine and tannin and nobody else actually referenced the paragraph).

Also ‘loyalty’ is featured as a possible justification for holiday increments beyond that period. I still think loyalty is open to challenge -the need for loyalty both in benefiting the employer and in relation to competion for the attentions of the employee might need to be shown. Hmm. And the sex ‘n’ age combo is hopefully still open.

But I’ve learnt my lesson. I aim never to have to humiliating correct my own assertions in the future.

Bob Cratchit.

Published
by
NL
on 11 October 2006
in job
. 2 Comments

Prompted by a comment by Anna and my own musings, I’ve been idly wondering about incremental or seniority based increases in holiday entitlement in relation to age discrimination (and pace Cadman, sex discrimination).

Such schemes are fairly common, x years of service result in extra holiday entitlement. In principle, like incremental pay increases, such things apply to entrants to an organisation regardless of age. However, as we all know, entry age tends not to be evenly distributed at all. By and large, I would be quite surprised if a significant distinction could not frequently be drawn between an entry level age group and an older group in the same role, with a large difference in holiday entitlement. Sufficent percentages in each group could perhaps be enough, as a comparator, to argue that an incremental holiday policy was discriminatory on age grounds, regardless of how equally the policy would be applied across the hypothetical entry ages.

Arguably, the same is true of pay increments, but it could be tricky to defend holiday increments as a reward for increased experience, unlike the pay policy presumption established by the European Court. A financial reward for extra skill is clearly arguable. Extra time off may well be less so.

So, what justifications could exist for a holiday increment policy - as a defence, or perhaps to be advanced as a policy ground like that of rewarding skill increases?

The only justification I can think of is a reward for staff loyalty - sticking with the employer. But this opens a whole can of worms. Would such a rewarding of ‘loyalty’ mean that in order to justify the policy it would have to be shown that the job was a) subject to competition on retaining staff; b) retention of experienced staff was a boon to the employer (maybe tricky to stand up at grunt work level); c) even if a) and b) were established, would this be sufficient to justify a prima facie discriminatory policy as reasonable?

The other option may be to classify extra holiday as effectively a paid perk, presumably making it taxable, but effectively making it fall under the extra pay/skill formula.

Given that there was a viable argument for pay increments as discrimatory on grounds of sex (and still is, depending on the circumstances), a challenge to holiday increments would also surely be possible on sex discrimination grounds (although the time periods for increments involved tend to be shorter and less continually graduated than pay). So perhaps we await a challenge brought on grounds of sex and age.

This will be interesting. I would love to see the argument on loyalty made and then the result. I’m not wholly sure it would stand up, but what the hell do I know?

All shall have prizes

Published
by
NL
on 7 October 2006
in whatever
. 0 Comments

On 3rd October, the European Court released its judgement in Cadman v HSE. Few people can have missed this as, for instance, there were large articles in the Guardian and the Times. Moreover, few people can miss that these articles draw deeply divergent conclusions from the judgement, because the headlines are a bit of a give-away.

Did Cadman win or lose? Does this change everything or nothing? Well, let’s look at the judgement. These were the questions referred:

(1) Where the use by an employer of the criterion of length of service as a determinant of pay has a disparate impact as between relevant male and female employees, does Article 141 EC require the employer to provide special justification for recourse to that criterion? If the answer depends on the circumstances, what are those circumstances?

(2) Would the answer to the preceding question be different if the employer applies the criterion of length of service on an individual basis to employees so that an assessment is made as to the extent to which greater length of service justifies a greater level of pay?

(3) Is there any relevant distinction to be drawn between the use of the criterion of length of service in the case of part-time workers and the use of that criterion in the case of full-time workers?

And the answer…

It follows from all of the foregoing considerations, that the answer to the first and second questions referred must be that Article 141 EC is to be interpreted as meaning that, where recourse to the criterion of length of service as a determinant of pay leads to disparities in pay, in respect of equal work or work of equal value, between the men and women to be included in the comparison:

– since, as a general rule, recourse to the criterion of length of service is appropriate to attain the legitimate objective of rewarding experience acquired which enables the worker to perform his duties better, the employer does not have to establish specifically that recourse to that criterion is appropriate to attain that objective as regards a particular job, unless the worker provides evidence capable of raising serious doubts in that regard;

– where a job classification system based on an evaluation of the work to be carried out is used in determining pay, there is no need to show that an individual worker has acquired experience during the relevant period which has enabled him to perform his duties better.

The third question referred for a preliminary ruling

In the light of the answer given to the first and second questions, there is no need to answer the third question.

As far as I can see, this means that length of service can be taken to be equivalent to development of skills, and therefore rewarded, except where, you know, it isn’t, but it is up to the employee to show that it shouldn’t be.

Oh, and experience is experience, so part-time/full-time, feh, presumably meaning experience is gained pro rata.

What a glorious judgement. Pay increments are justifiable on the basis of skills developed over time, except if they are not - where a worker can provide evidence raising serious doubts. Then the employer must prove length of service pay increases are on the basis of increased skill.

This amounts to ‘there isn’t a problem, except where there is, and it should be obvious where there is a problem, but we’re not going to tell you’. A classic European judgement. All shall have prizes and the Court of Appeal and perhaps the Tribunal will have to pick its way through this particular case.

And then, in chicken little mode, British lawyers apparently suggest that service related pay increments will fall foul of the age discrimination law anyway. Why?

Surely experience is not necessarily related to age. One could be newly started in a specific role at 50 or have significant experience in one’s mid 20s. If the European Court sees a valid equation between period of service and experience/skill gained, then it is hard to see why additional pay for additional experience would be an age discrimination issue, per se. Of course it certainly could be, but possibly that would require, as with this judgement, that some evidence that service related pay was not related to increased skill could be adduced by the claimant.

The figure of 5 years has been bandied around in the Times and the Guardian as the limit for ‘valid’ experience related pay increases, but without any basis that I can see, either in this judgement or the English age discrimination statute. Granted, it is arguable that any increase in skill hits a terminal peak after a certain number of years, but I would be surprised to see a single, arbitrary, cut off point enforced.

[Edit. Silly lazy me, of course the 5 year exemption is in the EE(A)R themselves at 32. After 5 years it must reasonably fulfill a business need - loyalty, motivation, reward experience.]
I wish I was an employment lawyer at this point. There appears to be much fun to be had.

And another data point heard from

Published
by
NL
on 4 October 2006
in job and whatever
. 0 Comments

I recently had the opportunity to discuss my latest ‘not getting a traineeship’ incident with one of my supervising solicitors (oddly enough, the one involved here, we have since got on very well indeed. In fact, I think the combination of early challenge to a non professional task, combined with doing my best to fulfill every professional request won them over).

The solicitor used to work at the firm involved. Apparently, they had never seen a trainee over 25 at the place in all the years they worked there. In fact, this solicitor had also been a mature entrant to the law and had been turned down for a traineeship from the very same firm.

This, as you might expect, led on to a general discussion of the problems of mature applicants. The solicitor’s experience paralleled and extended mine - particularly prior experience/career being treated in interview as a problem, something to be explained and justified, rather than an opportunity of the ‘what can you bring us’ kind.

Our consensus was that experience or career in other areas tends to be seen as a threat by recruiting/interviewing partners. Said partners must be startlingly insecure if the fact that one has had authority in another field appears as a difficulty or challenge to their own position. Or perhaps it is that they are so insecure in their own position that they cannot envisage someone who has had authority in another field willingly giving it up and being prepared to be an underling. This strikes me as probably the truer option.

Given the sheer level of skills mature entrants can bring; literacy, dealing with opposition, dealing with bureaucracy, pragmatism, advocacy, identifying key facts, working with a wide range of people and, of course, basic work skills all being amongst them, then it is time recruiting/interviewing partners addressed their neuroses as a business risk.

And now we are after 1st October, recourse to the EE(A)R is becoming a temptation.