According to the press, a foster couple in Rotherham have had their children removed by the local authority on the ground that they were members of UKIP.
A year and a half ago I wrote about foster carers who had been in the headlines because the local authority apparently did not approve of their views on homosexuality. My conclusion was:
There are many aspects of prospective foster parents that ought to be properly investigated - their financial probity and security, lack of criminal convictions, empathy with children, reasons for wanting to become foster parents, previous involvement with children in whatever capacity, and so forth. Their religious and political views, unless extremist, should not be towards the top of that list.
The same conclusion applies in this case, and therefore the local authority was in the wrong.
Meanwhile Macclesfield Magistrates' Court have apparently convicted a woman of a racially aggravated public order offence on the ground that she called her neighbour a "stupid fat Australian" when the neighbour was in fact a New Zealander.
As a New Zealander myself this made me raise my eyebrows. In common with most other Kiwis I would be quite wealthy if I had a pound for every time I have been mistaken for an Australian. It is always a source of amusement more than anything. Sometimes the person who has made the mistake is embarrassed, though relieved when I point out it does not bother me one way or the other (why should it? I am sure I have mistaken the odd Canadian for American or vice versa. All it shows is ignorance on the part of the person who makes the mistake - not an insult against the other person).
More to the point, I do not see how "New Zealand" can refer to race. Since the beginning of European settlement there New Zealand has always been at least a bicultural country, and demographics nowadays show it to be quite mixed ethnically. Thus the fact that one was born and raised there and has the accent to prove it says nothing about one's race. I would instead describe "New Zealand" in that context as a culture, though you could make a case that as a multicultural country there are far fewer shared cultural assumptions amongst Kiwis than there might have been twenty or more years ago.
The underlying problem is the provision in public order offences of religious and racial insults as aggravating forms of harassment. This is well meaning, but in practice likely to be very problematic, as we have seen with religious cases in the past. Better I would have thought to have a general offence concerning harassment, and to consider all aggravating and mitigating factors as part of the sentencing exercise.
Sunday, 25 November 2012
Wednesday, 21 November 2012
Employment once more: Smith v Trafford Housing Trust
Recently I wrote about an employee dismissed because he joined the British National Party. I argued that someone’s political views ought not to be a ground for dismissal or discipline unless they were somehow relevant to the job. Because the claimant in that case had an exemplary work record, his political affiliation plainly had not affected his work and accordingly he should not have been dismissed – whatever anyone thinks of the BNP. The case of Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) provides another, stronger example of the same principle.
Mr Smith was employed as a housing manager by the defendant, a private housing trust. In February 2011 he placed a link on his Facebook page to a BBC news article about gay marriages in church, and added the comment “an equality too far”. On the same day one of his Facebook friends responded with the comment “Does this mean you don’t approve”, to which he responded:
“no not really, I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose it’s (sic) rules on places of faith and conscience.”
For making his two comments Mr Smith was suspended from work on full pay, made the subject of a disciplinary investigation and then disciplinary proceedings leading to a hearing in March 2011, at which he was told he was guilty of gross misconduct justifying his dismissal. Because of his service record, however, he was instead demoted to a non-managerial position, with a consequential 40% pay reduction, phased over 12 months. His subsequent appeal was effectively dismissed, though with an extension of the phasing-in of the salary reduction from one to two years. He issued proceedings contending that the defendant had breached his contract by the demotion and pay reduction.
He contended that he had not been guilty of gross, or any, misconduct in posting the Facebook comments.
The defendant maintained that he had committed breaches of its code of conduct for employees, and acted contrary to its equal opportunities policy.
The judge held that a reasonable reader of Facebook wall page could not rationally conclude that Mr Smith’s two postings about gay marriage in church had been made in any relevant sense on the defendant’s behalf. The brief mention on his Facebook page of the identity of his employer was in no way inconsistent with the general impression to be gained from his Facebook wall – namely, that it was a medium for personal or social, rather than work related, information and views.
That was not to say that Facebook could never be used as a medium for work related communications, but clearly Mr Smith had not been using it in that fashion. Any reader would be left in no doubt that he regarded his employment merely as a fact – and not a particularly interesting fact – about himself. Nor were his postings about gay marriage in church themselves work related.
Those findings constituted robust common sense. Apart from anything else, putting the case at its highest in the defendant’s favour – that is to say, assuming that the comments could in some way be linked to Mr Smith’s employment – I still do not see how the defendant could have been justified in demoting him. As the judge said, his posts were not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence. They were widely held views frequently to be heard on radio and television, or read in the newspapers. He had been mainly responding to an enquiry as to his views, and doing so in moderate language.
Mr Smith’s claim therefore succeeded. Unfortunately the correct measure of damages was the very small difference between Mr Smith’s contractual salary, and the amount actually paid to him during the 12 weeks following his assumption of his new, but reduced, role. That was a modest sum indeed and rendered his victory somewhat pyrrhic. The judge expressed “real disquiet” about that fact – Mr Smith, he reiterated, had been taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct, and then demoted to a non-managerial post with an eventual 40 per cent reduction in salary. The breach of contract which the defendant thereby committed was serious and repudiatory. It was accordingly very lucky indeed to get off so lightly in financial terms.
I suspect that the defendant was acting out of the laudable motive to be seen to be an equal opportunities employer, and not to be seen to endorse any views discriminatory towards any potential customers. These are understandable aims, but do not justify the sort of action that was taken against Mr Smith. The defendant’s policies do not need to be enforced by some form of thought police. If Mr Smith held some views which he only ever expressed in his personal capacity, that was his business, unless perhaps they were so objectionable and offensive and directed at potential customers. But Mr Smith’s views were nothing of the sort. One feels that a disturbing climate is generated by these sorts of cases, in which all employees are expected to be on message politically – something ironically inimical to the notion of a diverse, tolerant society, which has to tolerate dissent and a wide range of views, even those counter to the zeitgeist.
The overarching principle for cases such as Mr Smith’s is that mentioned at the beginning: employees should only be hired or fired, promoted or demoted, according to actions relevant to their job. If they express views in private that have no bearing on their performance at work and in no way related to their employer, it is hard to see why they should be sanctioned by the employer, even if the views are ones which the employer does not share.
Mr Smith was employed as a housing manager by the defendant, a private housing trust. In February 2011 he placed a link on his Facebook page to a BBC news article about gay marriages in church, and added the comment “an equality too far”. On the same day one of his Facebook friends responded with the comment “Does this mean you don’t approve”, to which he responded:
“no not really, I don’t understand why people who have no faith and don’t believe in Christ would want to get hitched in church the bible is quite specific that marriage is for men and women if the state wants to offer civil marriage to same sex then that is up to the state; but the state shouldn’t impose it’s (sic) rules on places of faith and conscience.”
For making his two comments Mr Smith was suspended from work on full pay, made the subject of a disciplinary investigation and then disciplinary proceedings leading to a hearing in March 2011, at which he was told he was guilty of gross misconduct justifying his dismissal. Because of his service record, however, he was instead demoted to a non-managerial position, with a consequential 40% pay reduction, phased over 12 months. His subsequent appeal was effectively dismissed, though with an extension of the phasing-in of the salary reduction from one to two years. He issued proceedings contending that the defendant had breached his contract by the demotion and pay reduction.
He contended that he had not been guilty of gross, or any, misconduct in posting the Facebook comments.
The defendant maintained that he had committed breaches of its code of conduct for employees, and acted contrary to its equal opportunities policy.
The judge held that a reasonable reader of Facebook wall page could not rationally conclude that Mr Smith’s two postings about gay marriage in church had been made in any relevant sense on the defendant’s behalf. The brief mention on his Facebook page of the identity of his employer was in no way inconsistent with the general impression to be gained from his Facebook wall – namely, that it was a medium for personal or social, rather than work related, information and views.
That was not to say that Facebook could never be used as a medium for work related communications, but clearly Mr Smith had not been using it in that fashion. Any reader would be left in no doubt that he regarded his employment merely as a fact – and not a particularly interesting fact – about himself. Nor were his postings about gay marriage in church themselves work related.
Those findings constituted robust common sense. Apart from anything else, putting the case at its highest in the defendant’s favour – that is to say, assuming that the comments could in some way be linked to Mr Smith’s employment – I still do not see how the defendant could have been justified in demoting him. As the judge said, his posts were not, viewed objectively, judgmental, disrespectful or liable to cause upset or offence. They were widely held views frequently to be heard on radio and television, or read in the newspapers. He had been mainly responding to an enquiry as to his views, and doing so in moderate language.
Mr Smith’s claim therefore succeeded. Unfortunately the correct measure of damages was the very small difference between Mr Smith’s contractual salary, and the amount actually paid to him during the 12 weeks following his assumption of his new, but reduced, role. That was a modest sum indeed and rendered his victory somewhat pyrrhic. The judge expressed “real disquiet” about that fact – Mr Smith, he reiterated, had been taken to task for doing nothing wrong, suspended and subjected to a disciplinary procedure which wrongly found him guilty of gross misconduct, and then demoted to a non-managerial post with an eventual 40 per cent reduction in salary. The breach of contract which the defendant thereby committed was serious and repudiatory. It was accordingly very lucky indeed to get off so lightly in financial terms.
I suspect that the defendant was acting out of the laudable motive to be seen to be an equal opportunities employer, and not to be seen to endorse any views discriminatory towards any potential customers. These are understandable aims, but do not justify the sort of action that was taken against Mr Smith. The defendant’s policies do not need to be enforced by some form of thought police. If Mr Smith held some views which he only ever expressed in his personal capacity, that was his business, unless perhaps they were so objectionable and offensive and directed at potential customers. But Mr Smith’s views were nothing of the sort. One feels that a disturbing climate is generated by these sorts of cases, in which all employees are expected to be on message politically – something ironically inimical to the notion of a diverse, tolerant society, which has to tolerate dissent and a wide range of views, even those counter to the zeitgeist.
The overarching principle for cases such as Mr Smith’s is that mentioned at the beginning: employees should only be hired or fired, promoted or demoted, according to actions relevant to their job. If they express views in private that have no bearing on their performance at work and in no way related to their employer, it is hard to see why they should be sanctioned by the employer, even if the views are ones which the employer does not share.
Friday, 16 November 2012
J'Accuse - the Dreyfus affair then and now
I have been published in this week's New Law Journal, vol 162, 16 November 2012, p 1434 (£), on the Dreyfus affair.
Wednesday, 14 November 2012
Petrodel and others v Prest and others: "That must now cease"
Family lawyers and company lawyers alike will be anxious to see what the Supreme Court makes of Petrodel and others v Prest and others [2012] EWCA Civ 1395. The former may see the decision of the Court of Appeal as a gross and unwanted interference with well-established principle and authority. The latter may see it as an obvious correction of an obvious and thoroughly unwarranted legal aberration.
The case was one of the “big money” divorce proceedings that the press have often picked up on in recent years. At first instance, the judge ordered the husband to transfer £17.5m from company assets to the wife on the basis that he was unlikely to transfer assets from his personal resources (see [2011] EWHC 2956 (Fam)). To reach that decision he had to “pierce the corporate veil” and find that the assets of the company were effectively those of the husband. In determining whether it was appropriate to do so he followed a long line of family law cases centred on the concept of fairness and a consequent desire not to allow a spouse to hide assets in a corporate structure.
On appeal Thorpe LJ, a highly experienced family lawyer, upheld the judge’s decision. But he was outnumbered by the other two judges – Rimer and Patten LJJ – both of whom are veterans of the Chancery Division. In the starkest of contrasts they carefully trawled through the long list of authority relied upon by the judge below and endorsed by Thorpe LJ – and demolished the cases one by one.
Rimer LJ gave the main judgment. He said the family authorities were “internally inconsistent, contrary to principle and wrong”, and that the normal rules about company assets applied. The company could not use its assets to satisfy the personal debts of the shareholders any more than the shareholders’ personal assets could be sought by the company’s creditors – as , of course, all company lawyers have known since the seminal Salomon v A Salomon and Company Ltd [1897] AC 22.
Patten LJ said the same thing in a few short paragraphs given in emphatic agreement with and endorsement of Rimer LJ’s judgment:
What needs to be emphasised is that the provisions of s.24(1)(a) of the Matrimonial Causes Act 1973 do not give the court power to disapply the established principles of legal and beneficial ownership or of company law. On the contrary, those principles were plainly intended to define the limits of the court's jurisdiction under the statute and Moylan J was wrong to give the words "entitled, either in possession or reversion" any wider meaning. Married couples who choose to vest assets beneficially in a company for what the judge described as conventional reasons including wealth protection and the avoidance of tax cannot ignore the legal consequences of their actions in less happy times.
I wish particularly to support Rimer LJ's criticism of the dicta in Nicholas and his view that these cannot be relied upon as a correct statement of the law following the decision of this court in Adams v. Cape Industries plc. They have led judges of the Family Division to adopt and develop an approach to company owned assets in ancillary relief applications which amounts almost to a separate system of legal rules unaffected by the relevant principles of English property and company law. That must now cease.
It rather reminds one of the story of the provincial solicitors informing the London solicitors on the other side of a transaction in the early 1930s that the Law of Property Act didn’t apply in their part of the world.
It is not difficult to see the competing points of view. For family lawyers a fair outcome to matrimonial property disputes is the overriding consideration, and if one party is a sophisticated businessperson the use of a company structure may be an obvious way of hiding assets. Both the desire to protect the more vulnerable and the need for a fair outcome in all cases point to the need for flexibility for the court. In turn that means the court will need to be able to look at the substance of a corporate structure rather than its form. Geraldine Morris has a detailed analysis on Halsbury’s Law Exchange from the family lawyer’s point of view.
By contrast, commercial law requires certainty and the last thing that businesspeople are interested in is some sort of assurance that, if things go wrong, their money will be divvied out according to what a judge thinks fair after the time and delay of complex litigation. Instead parties to a commercial transaction will wish to set down in the clearest possible terms who owns what from the outset and who will be entitle to what should the venture fail. One only has to look at how the English Commercial Court became the most respected and sought-after judicial tribunal of its type in Europe after the war. It has usually applied the Salomon principle, looked to the parties’ intention when construing a contract, and followed the precedent system so that contractual wording in one case would be interpreted the same way in the next. As a result Continental courts, with their willingness to imply all manner of terms or overlook the express wording of contracts in pursuit of fairness, saw almost all international business head to London.
I have to say I instinctively side more with the company lawyers on this one, partly because as Patten LJ said one cannot have one set of law applying to one set of proceedings, but also because it does not necessary preclude an unfair outcome. For a start courts could order transfer of shares from one spouse to the other, which would not offend Salomon, although it might not be as tidy a solution by any means. But it is not a straightforward issue by any means.
No doubt the Supreme Court will have to deal with it sooner rather than later, and it will be interesting to speculate where their sympathies will lie. Somewhat atypically the present court contains two family lawyers, Lady Hale and Lord Wilson, but even if both are chosen to hear an appeal raising the point they are likely to be outnumbered by Chancery and Commercial judges, who still comprise the majority of the court as they usually have done. The new President of the Supreme Court, Lord Neuberger, is a former Chancery judge too of course …
The case was one of the “big money” divorce proceedings that the press have often picked up on in recent years. At first instance, the judge ordered the husband to transfer £17.5m from company assets to the wife on the basis that he was unlikely to transfer assets from his personal resources (see [2011] EWHC 2956 (Fam)). To reach that decision he had to “pierce the corporate veil” and find that the assets of the company were effectively those of the husband. In determining whether it was appropriate to do so he followed a long line of family law cases centred on the concept of fairness and a consequent desire not to allow a spouse to hide assets in a corporate structure.
On appeal Thorpe LJ, a highly experienced family lawyer, upheld the judge’s decision. But he was outnumbered by the other two judges – Rimer and Patten LJJ – both of whom are veterans of the Chancery Division. In the starkest of contrasts they carefully trawled through the long list of authority relied upon by the judge below and endorsed by Thorpe LJ – and demolished the cases one by one.
Rimer LJ gave the main judgment. He said the family authorities were “internally inconsistent, contrary to principle and wrong”, and that the normal rules about company assets applied. The company could not use its assets to satisfy the personal debts of the shareholders any more than the shareholders’ personal assets could be sought by the company’s creditors – as , of course, all company lawyers have known since the seminal Salomon v A Salomon and Company Ltd [1897] AC 22.
Patten LJ said the same thing in a few short paragraphs given in emphatic agreement with and endorsement of Rimer LJ’s judgment:
What needs to be emphasised is that the provisions of s.24(1)(a) of the Matrimonial Causes Act 1973 do not give the court power to disapply the established principles of legal and beneficial ownership or of company law. On the contrary, those principles were plainly intended to define the limits of the court's jurisdiction under the statute and Moylan J was wrong to give the words "entitled, either in possession or reversion" any wider meaning. Married couples who choose to vest assets beneficially in a company for what the judge described as conventional reasons including wealth protection and the avoidance of tax cannot ignore the legal consequences of their actions in less happy times.
I wish particularly to support Rimer LJ's criticism of the dicta in Nicholas and his view that these cannot be relied upon as a correct statement of the law following the decision of this court in Adams v. Cape Industries plc. They have led judges of the Family Division to adopt and develop an approach to company owned assets in ancillary relief applications which amounts almost to a separate system of legal rules unaffected by the relevant principles of English property and company law. That must now cease.
It rather reminds one of the story of the provincial solicitors informing the London solicitors on the other side of a transaction in the early 1930s that the Law of Property Act didn’t apply in their part of the world.
It is not difficult to see the competing points of view. For family lawyers a fair outcome to matrimonial property disputes is the overriding consideration, and if one party is a sophisticated businessperson the use of a company structure may be an obvious way of hiding assets. Both the desire to protect the more vulnerable and the need for a fair outcome in all cases point to the need for flexibility for the court. In turn that means the court will need to be able to look at the substance of a corporate structure rather than its form. Geraldine Morris has a detailed analysis on Halsbury’s Law Exchange from the family lawyer’s point of view.
By contrast, commercial law requires certainty and the last thing that businesspeople are interested in is some sort of assurance that, if things go wrong, their money will be divvied out according to what a judge thinks fair after the time and delay of complex litigation. Instead parties to a commercial transaction will wish to set down in the clearest possible terms who owns what from the outset and who will be entitle to what should the venture fail. One only has to look at how the English Commercial Court became the most respected and sought-after judicial tribunal of its type in Europe after the war. It has usually applied the Salomon principle, looked to the parties’ intention when construing a contract, and followed the precedent system so that contractual wording in one case would be interpreted the same way in the next. As a result Continental courts, with their willingness to imply all manner of terms or overlook the express wording of contracts in pursuit of fairness, saw almost all international business head to London.
I have to say I instinctively side more with the company lawyers on this one, partly because as Patten LJ said one cannot have one set of law applying to one set of proceedings, but also because it does not necessary preclude an unfair outcome. For a start courts could order transfer of shares from one spouse to the other, which would not offend Salomon, although it might not be as tidy a solution by any means. But it is not a straightforward issue by any means.
No doubt the Supreme Court will have to deal with it sooner rather than later, and it will be interesting to speculate where their sympathies will lie. Somewhat atypically the present court contains two family lawyers, Lady Hale and Lord Wilson, but even if both are chosen to hear an appeal raising the point they are likely to be outnumbered by Chancery and Commercial judges, who still comprise the majority of the court as they usually have done. The new President of the Supreme Court, Lord Neuberger, is a former Chancery judge too of course …
Friday, 9 November 2012
The BNP and Strasbourg: Redfearn v United Kingdom
There was irony aplenty this week as a BNP member, whose party considers the Convention on Human Rights to be a means by which Britain may be exploited by "the world's scroungers" and promises its immediate abolition, won a case in Strasbourg. The case is Redfearn v United Kingdom (App. No. 47335/06).
A good summary and analysis appears on the UK Human Rights Blog by Martin Downs here.
Mr Redfearn was a bus driver. He was employed by a private company, Serco Ltd (Serco), which in turn supplied his services to a local authority. There were no complaints about the standard of his work for Serco Ltd and in fact his supervisor, who was of Asian origin, had nominated him for the award of "first class employee".
Redfearn's political affiliation became public when he was elected as a BNP councillor. A number of complaints were received from unions and employees, following which he was dismissed. The grounds given for dismissal were that he would present a risk to the health and safety of his co-workers and passengers and jeopardise the reputation of his employer. These were all based on his BNP membership.
Mr Redfearn challenged his dismissal without success in the domestic courts but, as mentioned, has just succeeded in Europe. It needs to be emphasised that he has only won a preliminary victory. He wished to argue that he had been unfairly dismissed on account of his political beliefis or affiliations. He was precluded from doing so by the requirement of domestic law that required a year's service before such complaints could be made. That one year qualifying period did not, however, apply to grounds of pregnancy, race, sex or religion. The majority of the Strasbourg court found that that exception needed to be reconsidered and expanded to include political opinion or affiliation, or a free standing cause of action to the same effect.
Here is a classic example of why exceptions from a general rule - in other words, breaches of the rule of law - are a minefield. The one year rule was thought by Parliament to be necessary to encourage employers to take on more staff. Then it was thought that some forms of ill treatment, such as discrimination, were so serious that an exception should be made to the general rule. Now, almost inevitably, more exceptions are found necessary, after expensive litigation, leaving the open question of whether still more might be found in the future or else deserving claimants will be left without a remedy. Employers will not be happy either and will be more cautious about hiring new staff as a result.
Another side issue concerns the application of the Convention to a private employment contract, and whether Serco was in fact equivalent to an arm of the state because it was supplying services for the local authority. I will however leave that aside to keep the post within manageable length.
Let us return therefore to the substantive dispute. Without belittling the skill and responsibility involved, if Mr Redfearn's job was simply to drive a bus it is hard to see how his political affiliations (or religious beliefs, or philosophical views) would have been relevant. They might have been if he had chosen to display them by symbols, or logos, or if he had been covered in aggressive or offensive tattoos; or if he had decided to treat his passengers differently according to their race or gender or appearance.
One of the key principles behind anti-discrimination laws - ironically the very type the BNP generally opposes - is that people should not be subject to different treatment in employment for irrelevant reasons. Race, gender, political opinions and membership of a lawful political organisation are generally irrelevant to most jobs and certainly, one would have thought, driving a bus.
If the driver's performance was satisfactory, then membership of a legal organisation would not be grounds for dismissal but instead an exercise of the basic human right of freedom of association, even if it involved associating with a group that would, if given the chance, remove a few basic human rights.
Then there is the question, already raised in Redfearn's case, whether he could have been moved to a non-customer facing role. If so, suppose Redfearn changed his mind and disowned the BNP: would he then be able to demand reinstatement to his previous role or at least reconsideration of his suitability elsewhere? Would there be a test of his sincerity? If so, would that be amenable to review by the employment tribunal?
The BNP is a party whose doubtful reputation on human rights and indeed human decency needs no elaboration. Moreover, most of its policies, even leaving aside their objectionable nature, are no more than slogans anyway, unworthy of serious study or attention. The party's performance at the ballot box has, thankfully, largely corresponded todate. But here we have the classic liberal dilemma of tolerating intolerance. The BNP has made clear it would like to expel anyone it doesn't like from the country, if it could get away with it. By contrast, a more tolerant society than the one the BNP would like to foist upon us has to tolerate dissent. It also has to tolerate even highly objectionable opinions, in the name of free speech, free association and freedom of religion.
One only has to look at what happens to political undesirables in other countries to realise that toleration of minorities, and even what most people find very objectionable minority views, is a fundamental requirement for democracy and freedom. Then there is the employment law perspective: people should only be promoted, demoted or fired for reasons connected with and relevant to their employment. In the case of a bus driver this does not include membership of a political party, unless as I have stressed the driver starts to treat his passengers differently or otherwise breaches his contract.
Homosexuals should not be discriminated against in the provision of services offered to the public, even if it offends the sincerely held religious beliefs of others. Nor should people be denied the ability to wear religious dress in public. Nor should people be sent to jail for writing offensive garbage on the internet. And people should not be dismissed from their job for holding political views (or indeed for any other reason) unless those views preclude them from doing their job properly, in which case it is their performance, not their views, which should be impugned.
A good summary and analysis appears on the UK Human Rights Blog by Martin Downs here.
Mr Redfearn was a bus driver. He was employed by a private company, Serco Ltd (Serco), which in turn supplied his services to a local authority. There were no complaints about the standard of his work for Serco Ltd and in fact his supervisor, who was of Asian origin, had nominated him for the award of "first class employee".
Redfearn's political affiliation became public when he was elected as a BNP councillor. A number of complaints were received from unions and employees, following which he was dismissed. The grounds given for dismissal were that he would present a risk to the health and safety of his co-workers and passengers and jeopardise the reputation of his employer. These were all based on his BNP membership.
Mr Redfearn challenged his dismissal without success in the domestic courts but, as mentioned, has just succeeded in Europe. It needs to be emphasised that he has only won a preliminary victory. He wished to argue that he had been unfairly dismissed on account of his political beliefis or affiliations. He was precluded from doing so by the requirement of domestic law that required a year's service before such complaints could be made. That one year qualifying period did not, however, apply to grounds of pregnancy, race, sex or religion. The majority of the Strasbourg court found that that exception needed to be reconsidered and expanded to include political opinion or affiliation, or a free standing cause of action to the same effect.
Here is a classic example of why exceptions from a general rule - in other words, breaches of the rule of law - are a minefield. The one year rule was thought by Parliament to be necessary to encourage employers to take on more staff. Then it was thought that some forms of ill treatment, such as discrimination, were so serious that an exception should be made to the general rule. Now, almost inevitably, more exceptions are found necessary, after expensive litigation, leaving the open question of whether still more might be found in the future or else deserving claimants will be left without a remedy. Employers will not be happy either and will be more cautious about hiring new staff as a result.
Another side issue concerns the application of the Convention to a private employment contract, and whether Serco was in fact equivalent to an arm of the state because it was supplying services for the local authority. I will however leave that aside to keep the post within manageable length.
Let us return therefore to the substantive dispute. Without belittling the skill and responsibility involved, if Mr Redfearn's job was simply to drive a bus it is hard to see how his political affiliations (or religious beliefs, or philosophical views) would have been relevant. They might have been if he had chosen to display them by symbols, or logos, or if he had been covered in aggressive or offensive tattoos; or if he had decided to treat his passengers differently according to their race or gender or appearance.
One of the key principles behind anti-discrimination laws - ironically the very type the BNP generally opposes - is that people should not be subject to different treatment in employment for irrelevant reasons. Race, gender, political opinions and membership of a lawful political organisation are generally irrelevant to most jobs and certainly, one would have thought, driving a bus.
If the driver's performance was satisfactory, then membership of a legal organisation would not be grounds for dismissal but instead an exercise of the basic human right of freedom of association, even if it involved associating with a group that would, if given the chance, remove a few basic human rights.
Then there is the question, already raised in Redfearn's case, whether he could have been moved to a non-customer facing role. If so, suppose Redfearn changed his mind and disowned the BNP: would he then be able to demand reinstatement to his previous role or at least reconsideration of his suitability elsewhere? Would there be a test of his sincerity? If so, would that be amenable to review by the employment tribunal?
The BNP is a party whose doubtful reputation on human rights and indeed human decency needs no elaboration. Moreover, most of its policies, even leaving aside their objectionable nature, are no more than slogans anyway, unworthy of serious study or attention. The party's performance at the ballot box has, thankfully, largely corresponded todate. But here we have the classic liberal dilemma of tolerating intolerance. The BNP has made clear it would like to expel anyone it doesn't like from the country, if it could get away with it. By contrast, a more tolerant society than the one the BNP would like to foist upon us has to tolerate dissent. It also has to tolerate even highly objectionable opinions, in the name of free speech, free association and freedom of religion.
One only has to look at what happens to political undesirables in other countries to realise that toleration of minorities, and even what most people find very objectionable minority views, is a fundamental requirement for democracy and freedom. Then there is the employment law perspective: people should only be promoted, demoted or fired for reasons connected with and relevant to their employment. In the case of a bus driver this does not include membership of a political party, unless as I have stressed the driver starts to treat his passengers differently or otherwise breaches his contract.
Homosexuals should not be discriminated against in the provision of services offered to the public, even if it offends the sincerely held religious beliefs of others. Nor should people be denied the ability to wear religious dress in public. Nor should people be sent to jail for writing offensive garbage on the internet. And people should not be dismissed from their job for holding political views (or indeed for any other reason) unless those views preclude them from doing their job properly, in which case it is their performance, not their views, which should be impugned.
Sunday, 4 November 2012
More Taking Sides
I am continuing to read Bernard Levin's Taking Sides, and enjoying the window that it provides on Britain's recent past. In 1973 Levin loses his cool with the Gas Board for making a hash of converting his elderly widowed mother's flat to gas. He finds the details of the supervisor responsible and publishes them in the Times, exhorting the public to express their frustration for any similar experience directly. I doubt he'd be allowed to get away with it now and I am rather surprised he got away with it then. He finishes his first column on the subject with the following thunderbolt:
I want a public answer to this question: what is wrong with a national organization which gives its customers not the service they pay for but, instead, incompetence and a string of broken promises.
It seems his column worked, for he follows it up with another dated two weeks later in which the problem has been solved and a letter of apology received by his mother. But he despairs for anyone else:
Unless the Gas Board, feeling that it has done its final duty by the tribe of Levin, has now given up The Times, perhaps any senior official reading this might care to indicate to his colleagues that something in the nature of a return to square one is urgently needed.
There are any number of problems with privatised utilities: price gouging if a monopoly; executives trying to ensure their bonuses keep pace with the rest of the City irrespective of their actual performance; different companies involved in the supply chain each seeking a profit and inflating the price for the end user accordingly; important national resources being placed beyond national control; and so on. At the same time, reading Levin's book tends to confirm the suspicion that a return to 1970s Soviet-style state monopolies with Soviet levels of incompetence and inefficiency might not be the answer.
In the next article Levin returns to the law and his favourite pastime of attacking lawyers, in this case judges. He records that one Mr Banks, "who is herewith invited to blow the froth off a pint of mine any time he finds it convenient to call" was arrested and charged with contempt for having given the fingers to a judge passing in official regalia on the way to Teesside Crown Court. Apparently Mr Bangs made a mistake and had intended to do the fingers to the Mayor instead, as an expression of frustration over a recent rates increase. For this misidentification he found himself in the dock. Levin mercilessly taunts the judges for their Gilbert and Sullivan appearance and haughty pomposity.
I have to say I agree with Levin that prosecuting Mr Bangs did something to damage and nothing to uphold the majesty and dignity of the law. Levin provides a contrasting example of an aggrieved litigant in person who threw books at the bench as they were retiring. None of the judges batted an eyelid, leaving the litigant rather than them looking silly and feeling harassed.
As with most who have observed court over the years I could add many similar examples. My favourite(it may be apocryphal) concerns the failed appellant in the Court of Appeal, Criminal Division, who screamed at the Lord Chief Justice "You f++ing bastard", before receiving the casual response: "Well I suppose the bastard point's debatable, but I'm certainly not f++ing anything at the moment ..."
Without drawing too long a bow, I might add that such sanguinity is something to bear in mind in the present day, where the law is busily tying itself in knots trying to apply s 127 of the Communications Act 2003 to the billion or so Facebook updates and Tweets daily. It might be harsh telling someone to develop a thicker skin, but it is more harsh to jail someone for some random piece of nonsense published on social media.
Saturday, 3 November 2012
Bernard Levin - Taking Sides
Recently I have been leafing through an old book for the first time in a number of years, Taking Sides by the late Bernard Levin. I have a fond personal memory of meeting Mr Levin in the mid-1990s, when he was on a speaking tour of New Zealand and I was a young law student. Aware of his reputation as a fearless liberal, I carefully prepared a submission in case there were audience questions. I don't remember the wording but I recall pulling together some impressive-sounding (so I hoped) quotes on free speech from John Milton and Ronald Dworkin and relating them to some story then in the news. I didn't get the chance to speak during the Q&A session as it turned out, but I did get to speak to Mr Levin afterwards. I carefully presented my submission and felt a tinge of adrenaline at the thought that I might be about to lock horns with a famous intellectual. Instead Mr Levin said "absoutely, I quite agree" and then added "of course, indeed" before moving on to the next person. I must admit to feeling slightly deflated, though he wasn't dismissive or insincere in the way he spoke.
In retrospect I might have had a better chance of exchanging views had I offered something with which Levin was likely to disagree, but he was a famous defender of free speech and so it wasn't surprising at all that he concurred. Perhaps therefore I should have taken a leaf from his book and adopted a deliberately contrarian position: Levin apparently accepted a job with the Times rather than the Guardian because he thought it more interesting as a columnist to go against the editorial grain (others have suggested the better pay also might have had something to do with it).
Levin is known as the father of the modern Parliamentary Sketch: prior to him, most were reverential and dull in equal measure. Levin on the other hand did not see himself as dutifully recording the learned discourse of his betters, but more as a theatre critic sitting in the front row of a farce. I think he was also something of a blogger before his time: at his peak, he wrote short and succinct posts almost daily on all manner of subjects, and prompted more letters from readers than most blogs receive comments. Like the very best bloggers today, Levin could be interesting whatever the subject. Despite the randomness of what he wrote about there were some recurrent themes, and a strong sense of values underpinned all his articles, even the apparently trivial.
Taking Sides makes fascinating reading. Levin is a writer of such genius that he can be inspiring and off-putting at the same time to anyone who writes for a hobby or for a living: the phenomenal craftsmanship of his sentences is inspiring and intimidating in equal measure.
The book was first published at the end of the 1970s and is composed of a collection of articles written during that decade, when Levin was chief columnist for the Times. As such it gives quite an insight into an age when some things were very different and others very much the same. His article on a teacher who seduced a pupil is very poigniant given the Savile affair and related accusations. (It is also worthy of a separate blog post, which I hope to get around to shortly.)
There is much dramatic irony in what modern readers know but Levin could not. One essay, for example, is an impassioned argument against the death penalty, which many were calling for at the time because of the Birmingham IRA attack. Levin's argument is not on the basis that the Birmingham Six were innocent but on the basis that they were indeed cold-blooded murderers, and his argument becomes crushingly powerful to a modern reader who knows that they were in fact innocent.
Other essays fearlessly attack the inquities of Apartheid and the Soviet Union. Both of course vanished less than twenty years after Levin was writing, but few imagined that at the time, especially in the case of the Soviet Union. I may also fashion some future blogs around these articles: with human rights rarely out of the headlines there are more than a few lessons to be learned from our recent past.
In other respects, it must be pointed out, Levin was in the wrong then and remains in the wrong now. He defended Nixon long after Tricky Dicky had become indefensible. His liberalism was a liberalism too far when it came to advocating Myra Hindley's release - not because no case could ever have been made, but Levin's own was uncharacteristically weak. And despite his brilliance as a writer some jokes don't work, and some go on too long, and sometimes his serious prose turns into not much more than a rant, in the process losing whatever point or points he set out to make.
Enough criticism for now. One of Levin's greatest strengths was taking on the establishment and any sacred cows of the day. Lawyers were amongst his favourite targets, at least when they were at their self-important and pretentious worst (not on the other hand when they were in the form of Sir Sydney Kentridge fearlessly attacking the Apatheid authorities). I will close this post with one of the "letters from the profession" which Levin explained had replaced his column on a particular day. It was prompted by the-then Commissioner of the Metropolitan Police, Sir Rober Mark, who had had the temerity to suggest that some criminal lawyers were criminal in both senses of the word. Levin's letters are from the likes of Sir Preposterous Attorney QC; Sir Grand Larceny QC and Mr Only Line-Pockets QC. This one is from Sir Ratlike Countenance QC, of 961 Pump Court:
"Sir,
Once again it is necessary to explain to the public - this time because of Sir Robert Mark's scandalous and unjustified allegations - just how the legal profession works. Sir Robert insinuates that we lawyers are willing to tell a pack of lies in court for money: but I can refute this charge - as ridiculous as it is false - quite conclusively. Every lawyer is perfectly willing to tell the truth for money, or even to shut up entirely for money. Indeed, some even prefer to, other things (the money, for instance) being equal."
Friday, 2 November 2012
Zombies in the High Court
I have been published in this week's New Law Journal, on the suit against Peter Jackson over his Splatter Horror film "Brain Dead" (released in some countries as "Dead Alive".
Free speech in knots
This morning comes the news that Matthew Woods, jailed over offensive social media messages, has had his sentence reduced on appeal. This does not change the fact that he should not have been charged in the first place, let alone convicted and sentenced to a term of imprisonment.
The problem, as others have identified, is that the Communications Act 2003 predates the invention of Facebook and Twitter. It seems to have been developed to deal with telephone messages. When added together there are over a billion Facebook updates and Tweets every day. The legislation is therefore unworkable.
Meanwhile, lawyers are left trying to explain to the public why Mr Woods was jailed but Frankie Boyle was not even charged over his tweeted joke about Jimmy Savile going to heaven to have sex with Madeline McCann. In fact the law has been distinctly on Mr Boyle's side of late, with him recovering damages for libel because, he contended, a newspaper accused him of being racist.
I leave the last word to someone else on Twitter, who wrote: "If you're thinking of unfollowing Frankie Boyle because he made a distasteful remark, why were you following him in the first place?"
The problem, as others have identified, is that the Communications Act 2003 predates the invention of Facebook and Twitter. It seems to have been developed to deal with telephone messages. When added together there are over a billion Facebook updates and Tweets every day. The legislation is therefore unworkable.
Meanwhile, lawyers are left trying to explain to the public why Mr Woods was jailed but Frankie Boyle was not even charged over his tweeted joke about Jimmy Savile going to heaven to have sex with Madeline McCann. In fact the law has been distinctly on Mr Boyle's side of late, with him recovering damages for libel because, he contended, a newspaper accused him of being racist.
I leave the last word to someone else on Twitter, who wrote: "If you're thinking of unfollowing Frankie Boyle because he made a distasteful remark, why were you following him in the first place?"
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