Question. Why is the High Court like a laundrette?   Answer. They are both places for washing dirty linen in public.

The Solicitor, his Secretary (his lover) and Mustapha.   (and how tribunals engage in fantasy to decide sex-discrimination claims!)

“Elfandsafety” it’s official.   We’ve known about it for years but at last it’s been officially recognised.

November 7th - a date to remember.   November 5th may be Guy Fawkes night but November 7th is a two badge day this year.

Question. Why is the High Court like a laundrette?

Answer. They are both places for washing dirty linen in public.

It’s a principle of British justice, that justice must not only be done but seen to be done. So when there’s a high-profile legal squabble, the juicy details are opened up for all to see.

The case of Crystal Palace Football Club v Dowie attracted a lot of attention recently.

It was a case about porky pies. No not those served up at half time, nor even those in the “who ate all the pies” song. We’re talking about the verbal variety here.

What happened was that Ian Dowie, the manager of Crystal Palace, asked to be released from his contract early because he wanted to find a job closer to his family in the North. The club’s chairman, Simon Jordan was sympathetic and eventually a compromise agreement was drawn up which both men signed.

A week later Dowie was appointed manager of Charlton Athletic. Now most people know that Charlton isn’t exactly in the north. It’s not even north London. So Simon Jordan wasn’t a happy bunny.

Of course it’s not uncommon for people not to tell the whole truth about why they are leaving a company. They don’t always want to admit the real reason was they couldn’t stand the bosses bad humour/ bad habits/ bad breath any longer.

But most people don’t have contracts like football managers.

And we don’t normally have the chance to look at football manager’s contracts. Except when they take them to the High Court.

So Crystal Palace sued Mr Dowie for deceit. They said that when he signed the release agreement he had lied about wanting to move closer to his family.

Dowie’s case was that when he first raised the subject with Mr Jordan, he genuinely wanted to move back North. He didn’t know about the Charlton job then. It was just that events moved quickly after that.

After nine days of hearings, the court agreed with Crystal Palace. They said the deceit occurred at the time Dowie signed the agreement. At that time he knew about the Charlton job so he was under a duty to tell Mr Jordan that his original plan to move North had changed.

And what did Crystal Palace gain? I suppose they got their legal costs back (two barristers for nine days and the rest must have added up to six figures). But what was the point?

Well in theory there was a million quid at stake, because Ian Dowie’s contract had a very unusual “compensation clause” in it.

It said that if he should leave the company and gain employment at any League or Premiership Club before 30 June 2008, the Club will receive a compensation payment of one million pounds …..

The main reason that Dowie wanted to sign a compromise agreement was to be released from the million-pound compensation payment.

So what Crystal Palace wanted from the court was a declaration that the compromise agreement was invalid because it had been procured by dishonesty. And that was what the court awarded. Technically the court “rescinded” the compromise agreement, putting the club back into the position they were in before they signed it.

It was interesting that the judge said he was making no finding on whether or not the compensation agreement was legally enforceable. Presumably that would be for another court on another day (or nine days more likely, thank you M’lud).

Looking at the clause from a layman’s point of view it’s hard to see how it could be enforced, because it doesn’t specify who has to pay the million quid. The idea is that the football club that employs Ian Dowie next should pay the money but if they were not a party to the contract, it’s hard to see how they could be forced to do so.

Maybe it wasn’t really about the money. Although this was a very expensive high-profile case, it started in the same way that most tribunal hearings start.

Somebody’s feelings got hurt.

Simon Jordan said in his evidence “I am a commercial man who was prepared to waive £1m worth of compensation on the basis of goodwill and human interest, who was lied to and duped and I don't take very kindly to it”

As the judge put it, Mr Jordan felt that he had been made to look a fool.

I don’t know whether or not Simon Jordan felt vindicated. He is unlikely to see any of his million quid compensation without another court case. Perhaps it was enough satisfaction to see his opponent crippled with legal bills.

The Solicitor, his Secretary (his lover) and Mustapha.

(and how tribunals engage in fantasy to decide sex-discrimination claims!)

This case from the Employment Appeal Tribunal was reported as A v B.

It’s an interesting case in a number of ways.

First, there were reporting restrictions. This only happens where sexual misconduct is involved. But who was Mustapha and why was he named if the others weren’t?

Second, why do solicitors end up losing tribunal cases when they, of all people should know better?

And third, it shows how easy it is for anyone, even tribunals, to get in a muddle over sex discrimination.

The case was brought by the secretary against her previous boss, the solicitor. It was an old fashioned love triangle. The local solicitor (older man) falls in love with his pretty young secretary. He showers her with gifts and even pays her fees to attend college. While at college she falls for a younger man (Mustapha). One day the solicitor sees his lover walking hand-in-hand with Mustapha…..

At this point the solicitor forgets everything he ever knew about employment law. For a moment he forgets he’s a solicitor. He’s a spurned lover. An angry terminator. It’s over, never darken my doors again he gasps.

In the cold light of day, realisation dawns. There has been a dismissal.

Weeks later the case comes to the Employment Tribunal.

They had two issues to decide. The first was the question of unfair dismissal. It didn’t take them long to decide that the secretary had been unfairly dismissed. Even if there had been just cause for dismissal, her employer hadn’t made the slightest attempt to follow the statutory procedure. There had been no letter advising her of the complaint against her, no hearing and no appeal. It was unfair. No question.

The second question for the tribunal was trickier. Was it a case of sex discrimination? Had she been badly treated because she was a woman?

The tribunal thought long and hard, then decided that there had been sex discrimination. Their argument was that it wouldn’t have happened to her if she hadn’t been a woman. In discrimination law this is known as the “but-for” test. “But for the fact I’m a woman, this wouldn’t have happened”.

The ex-secretary won her sex discrimination case.

But never underestimate a spurned solicitor. The appeal was delivered swiftly.

The solicitor’s case at appeal was argued by his barrister, Mr Purchase. The problem with the “but-for” test, he explained, is it doesn’t prove causality. It’s not enough proof on it’s own. For instance she could have argued that “but for” the fact that I’m my parents daughter, this wouldn’t have happened.

Mr Purchase went on to say that the tribunal should also have used the “what-if” test. In legal terms it’s called “constructing a hypothetical comparator”. In layman’s language it’s called engaging in fantasy. It goes like this:

What if the Solicitor had a male assistant who was also a (gay) lover. What if the gay lover had been unfaithful? Would he have been dismissed in the same way? The Appeal tribunal went through this scenario in their own minds and agreed with Mr Purchase. In their own private fantasies the (hypothetical) gay lover was dismissed too.

The “what-if” fantasy test just proved that the real reason for the dismissal was jealousy. It wasn’t sex discrimination at all.

The moral of this tale is that when sex is involved, tribunals as well as solicitors (and everyone else) can easily get themselves into a muddle. Picasso HR clients always have the advantage that they can talk things over with us and get it right first time rather than act in the heat of the moment and get it wrong.

And did the secretary and Mustapha live happily ever after? Unfortunately that is something we will never know.

“Elfandsafety” it’s official.

Bill Callaghan, outgoing Chairman of the HSE, came right out with it in March this year. These are his very words:

“I’d like to say a few words about a subject dear to my heart – “elfandsafety”. When people I meet socially find out what I do for a living, the reaction is all too often “oh you’re the people who ban conkers, stepladders, Christmas decorations” or whatever is the subject of the latest popular story.

He’s right of course. For years the newspapers have confused “elfandsafety” with the real thing.

“Headmaster bans knotted ties” – Daily Express, 24th October 

 “Bonfire night cancelled in Guy Fawkes' home town by health and safety killjoys” - Daily Mail 22nd October.  

And there are plenty more silly examples of “elfandsafety” in the papers.

• Bans on conker games at schools
   
• Primary school pupils banned from using cardboard egg boxes
   
• Trapeze artists told to wear hard hats
   
• Councils flattening wobbly cemetery headstones (and vandals getting the blame)
   

But after we stop laughing, could there be a serious down-side to this? By focussing our attention on the ridiculous are we sometimes in danger of forgetting what health and safety is really about.

To bring this point home there are no better words than those spoken by Judge Peter Jacob’s on 3 July 2007 at Norwich Crown Court.

The judge was addressing the director and manager of a concrete plant as he pronounced sentence on them. They were standing in the dock for the manslaughter of Christopher Meachen. Mr Meachen, a father and 28 year old former RAF avionics technician was killed when he became caught up in an unguarded conveyor on 7th November 2005.

This is what the judge said.

"These days, on some occasions, in this sometimes over politically correct world of ours, so called health and safety gets a bad name, but if anybody wants to really know what health and safety is about, they should sit here when I have to deal with these cases because here, there was no concern, and here you are dealing with the safety, the livelihood of the lives, the physical wellbeing of decent men who work in these plants, and in this particular case, there was no structure at all.

 "There was no risk assessment. There is no policy. There is no policy of inspection and reporting. There is no line of responsibility. There is nothing throughout all of these plants."  

We’ve known about it for years but at last it’s been officially recognised.

November 7th - a date to remember.

In history, the 7th November is remembered as the day when:

• In 1917, Lenin’s coup started the Russian revolution,
   
• In 1974, Lord Lucan disappeared after the murder of his children’s nanny,
   
• In 1967 “Our Enery” Cooper beat Billy Walker to win his third Lonsdale belt
   

Well, all that pales into insignificance this year because November 7th 2007 is officially “Ban Bullying at Work Day” and also “National Stress Awareness Day”. It’s a kind of two-badge day.

“Ban Bullying at Work Day” is sponsored by Royal Mail who have been working hard to clean up their act since 2003 when they were investigated by the Equal Opportunities Commission and Chairman Allan Leighton admitted in a statement that “there is more bullying and harassment than in any other company in the country”.

Things have no doubt improved since then although the Socialist Worker on 9th October led with the headline “Bullying from Royal Mail” and went on to say:

“As the post strike hots up there is increasing evidence that managers are trying to bully workers and break the strike”.

Well they would say that, wouldn’t they?

The “Ban Bullying” campaign is spearheaded by the Andea Adams Trust. Andrea Adams was a reporter who in 1988 exposed a workplace bully terrorising 50 or so workers in a quiet Wiltshire suburb. But this bully wasn’t working for the Royal Mail or anywhere else with a “macho” culture. He was a manager at the local bank! Andrea Adams wrote the first book about workplace bullying but sadly she died of cancer in 1995.

National Stress Awareness Day is also on 7th November. We just have to hope that too many people won’t get stressed out trying to Ban Bullying and Beat Stress (as well as cope with life’s normal demands) all on the same day.

The big Stress Awareness message this year is to “Smile away Stress”. There’s a big picture of Stephen Fry on the website and he’s almost smiling himself.

They go on to tell us about nine more “Stress Busters”. These are:

• Exercising
• Getting enough sleep
• Thinking positively
• Reaching out to others
• Achieving a good work-life balance
• Relaxation
• Healthy Eating
• Hugging
• Seeking Professional help if you need it

And of course not forgetting to “Ban Bullying” at the same time.

The information in this newsletter is of a general nature and is not a substitute for professional advice. You are recommended to obtain specific professional advice before you take any action.

For further information, advice or assistance on any of the matters raised in this newsletter please contact Picasso HR on 01473 890037.

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