Comments by Colin England

Colin England
Member - 41 posts

Remind me not to go to Linklaters for legal advice -- they clearly do not understand the law.

To have positive discrimination policies in favour of one sex is unlawful in terms of both UK and EU law.

To positively discriminate in favour of one sex is to discriminate against the other sex and is unlawful for that reason.

It matter not one jot that possible clients (not even actual clients!!) ask for details of diversity statistics. Tell them that we do not keep such details or that such details are not available. Does Linklaters want such possible clients - who themselves appear not to understand the law? I would suggest that such clients in asking for such information are themselves breaching EU Directives - if not UK Law.

"leading firms - driven by customer comments, the threat of lawsuits and worries about recruitment - are setting up initiatives aimed at attracting those who have felt unwelcome in a historically conservative profession".

Leading firms will most certainly find themselves facing undefendable lawsuits if they persue positive action ploicies.

Mr Davis shows the most disgraceful sexist opinions when he says that "women lawyers might better understand the impact on families of job lossess. Where is his evidence of for that opinion?

Colin England
Member - 41 posts

Hi Kelly

Thanks for that information - most useful.

It only remains to see if HM Governemnt changes it's mind before the 1st October.

Colin England
Member - 41 posts

A further comment if I may ---

"My partner dismissed her and did not follow any procedures as such simply called her into an office and apologised that this was not working out. Not perhaps the view i would have taken."

To dismiss someone without giving them notice or the opportunity to explain their position would appear to breach the employees human rights and also be in breach of the Statutory Proceedure. Both these breaches are actionable by the employee.

Colin England
Member - 41 posts

The employer in this case must revise the wording of the Contract of Employment - it is no good saying "the contact suggests". The Contract is just that - a legally enforceable contract and must be worded so that there is no doubt what it means.

In this case the employer might well consider that the easiest thing to do is to pay the employee off with what she is asking for - and get her to sign a legally enforceable agreement not to persue her claims further. The alternative is to become embroiled in long and expensive arguments and maybe court or tribunal action.

Colin England
Member - 41 posts

Oh dear here we go again. Employers must get to grips with the discrimiantion laws of both the UK and the EU.

Under UK law it is permissable for Political Parties to have women only or balanced selection lists BUT this is not lawful under the EU Directives.

UK law refers only to selection lists and not to appointments as envisaged by David Cameronand this is anyway unlawful under the EU Directives.

What happens in Norway is not relevent to the point.

Colin England
Member - 41 posts

No -sorry it is no clearer.

An employer can compile records of it's employees but until someone is employed by that employer it is of no concern to the employer what their sexual orientation or gender is. Or for that matter what their race or religion is.

If I follow Jayn's reasoning - an employer would need to undertake a great many enquiries to ensure (and prove) that they are following all matters covered by legislation.

So far as I know, no Government Department or official organisation asks any employer for details of the people who have applied for a post with them. So it follows that an employer asking these sorts of questions does so for their own (questionable) reasons.

Colin England
Member - 41 posts

It is the case that many organisations now require an applicant to complete the form on ethnic monitoring and other such like matters.

As has been said this is so they can make returns to the Govt or can show appropriate details on their Annual Report. But in my mind this is all wrong.

In this case James was about to apply for a post; he decided not to apply for that post because he was being asked questions, which he was entitlted to feel were intrusive into his private life. Therefore he has been discriminated against and can - should - make formal complaint to the organisation and ask the EHRC for assistance in bringing a claim against the employer.

If James does put in a formal complaint to an employment tribunal he can use the questions proceedure and the discovery proceedures to find out more about what the employer's intentions were. It may surprise James and us to have this detail.

Please James put the name of the employer on this site --- and also the details of the post you were applying for if that is not too intrusive.

I question how and why Jayne says that this follows from the current legislation - can you please explain a bit more about this please Jayne?

Colin England
Member - 41 posts

Hi Stephen

Not quite right. The local authority building control officer or approved inspector must still "approve" the plans and the work as actually done.

This case is complicated by the involvement of the education department and the contracted architect. On the one hand the Building Control Officer will be constrained by the internal presures of the education department and on the other hand the fact that an architect has drawn up the plans means that the Building Control Officer will not give quite so much detailed attention to the plans as he might otherwise have done - he will make the reasonable assumptuion that the architect will have done his work correctly and considered all aspects of the Building Regulations and other requirements.

Colin England
Member - 41 posts

I recall that it was put forward as a good reason for having tribunals rather than courts, that a tribunal can use it's own knowledge and understanding to help reach a decision. This present case seems to run against that thought.

Are tribunals getting to be too much like courts?

Also I have known tribunals, say that a claimant who has acted in accordance with the idea that all possible heads of claim should be set out int he claim form, has brought claims merely to cause problems for the employer -- but then gone on to find for the employee!!!

Colin England
Member - 41 posts

Hi James

Thanks for that link - it really opened my eyes to what the outside World is really like. I wonder if A&F have any one to give them legal or HR advice? Perhaps I should make them an offer?

It seems to me that it best if the employer does have a dress code and supplies the clothes that are approved work wear.

I say the above on the basis of my experiences. I was interviewed once for a very senior HR job with a London Council. The interview panel were all Councillors who had obviously come straight from work and were dressed in their every day work clothes - and nothing wrong with that. I was dressed in a very smart new suit and tie and with polished black shoes. The whole interview was interposed with comments about my dress code and how it would fit into the locality and the office. The panel asked nothing meaningful about my work experience or capabilities. I got the job.

With another London Council I was resposible to a lady (?) who made it very clear that in her view all men are potential rapists and that she was the particular object of their intentions. She also made it very clear that her view was that men wore ties as phallic symbols and that the ties pointed downwards for a reason. Simple -- do not wear ties and keep away from her as much as possible. But at the same Council I had a great deal to do with the Chief Executive. He was of the old school and anyone not in a suit with a tie was not approved of. So no suit and no tie when I was in my own workplace and suit and tie when I saw the CE. Believe me when I say that all this is only funny in retrospect!

Colin England
Member - 41 posts

It is stated that the matter was reported to the Police -- Ha ha ha -- in London the police are totally useless and will not even visit a house where a burglary has taken place. In a recent incident a worker stole some very valuable and irreplaceable tools(which were amrked and readily identifiable), it could only have been someone in a small group of people who stole the tools butsome few weeks later the Police have taken absolutely no action whatever.

Colin England
Member - 41 posts

Make sure you cover yourself. Send copies of the Risk Assessment to all and sundry espcially to the Chief Health and Safety Officer of the Council you work for and send something in writing to your Boss and ask if a copy of the Report can be sent to the Chief Executive and Director of Education of the Council.

The problem of head height should have been looked at when plans were in process of being approved by the Council's education department officer.

Also the Building Control officer might not have given much thought to head heights when the pans were submitted for Building Control Approval - aftre all it was being designed by an Architect and the Council's Officer (at quite a high level) were involved.

If the building is insured (some Councils carry their own insurance risk) there might be problems - especially if a claim is made.

Colin England
Member - 41 posts

A second thought

If the employer does ask for the money back they may then be criminally liable foratempting to obtain money by false representation. If they do actually get the money back they may be guilty of obtaining money by false representation. All staff involved in getting or attempting to get back the money may be guilty of conspiracy to ....

Choate and inchoate offences --

Colin England
Member - 41 posts

James Fairchild asks the right question "Is the employee aware of the mistake?" If she is not aware and has acted in good faith then the doctrine of equitable estoppel comes into play. Under that rule of law if someone (the employer- person A) repesents a situation as being the correct position and then someone (person B) with a legal realtionship to the person A acts on the representation made and has no knowledge that the representation might be wrong or false, then person A cannot afterwards claim that they made a mistake.

So applying the rule of equitable estoppel in this case. The employer made a payment of wages and thereby represented to t he employee that the employee was due that sum in wages, the employer cannot later reclaim the money as being paid by mistake.

It is up to the employer to make sure that all wages and other payments are made correctlya nd int eh right sum. There should be a full annual audit and other checks - eg to make sure that that people on the wages sheet are still actually employed by the company.

Colin England
Member - 41 posts

In response toTami K

At interview I have been asked questions in Latin! I have also been asked what is the calorific value of coal - both in an interviews for an HR job! I recall an interview at The London Borough of Brent where I was interviewed by an all black female interview panel and was haranged all the whole time by the then Leader of the Council - a lady who is now a senior Labour MP. I did not get the job.

I also worked for Greenwich Council I was told time and time again that I would not be propomoted until I was qualified -- but the Director and Council generally put every obstacle in my way to get qualified. At the same time women and Ethnic Minorities were given day release, paid time off for revision and for the exama and etc.

Colin England
Member - 41 posts

I quote Anne McAllister "Yes you are still discriminating but in a positive fashion.
For example an organisation with 200 staff 80% of whom are male now has a duty under the gender equality guidelines to ensure that recruitment policies envelope all members of society." Sorry Anne but you are absolutely wrong on all counts.

The "Gender Equality Guidelines" are not law and any employer giving them as the reason for discrimiantion would be rapidly put in thie rplace with heavy fines ( I hope).

The EU Sex Discrimination Directive does not allow for the position which Harriet Harman proposes to adopt. So we are safe -- for the moment.

How about setting up a campaign to get that woman deslected afor the next GeneraL election?
Colin

Colin England
Member - 41 posts

In discussion in the office here it has been pointed out to me that the "Rules" are made part of the contract of employment. So all courts must enforce them. This does seem to be the case on readingt he Regulations. Any comment anyone?

Colin England
Member - 41 posts

To quote gavin "Thus it follows that, if you are unable to bring an unfair dismissal claim in your first year of service, you have no redress if your employer does not follow the process." You may still have rights enforceable in the civil courts - and they may (should) take account of the "Rules"
Colin

Colin England
Member - 41 posts

I quote Darren Windsor "What Gavin means, I think, is that a law is only as good as your ability to enforce it. Without 1 year's employment, enforceability is difficult. Therefore an employer can dismiss you without following the proper procedure - not because they are right to do so - but because they know there is little you can do about it."

An employee can take an employer to the civil courts at any time and the fact that the rules are Statutory means that the Civil Courts will have regard to them. One of the points made for the abolition of the Statutory Rules is that employees are taking out cases in the Employment Tribunals simply to have a ruling as to if the Rules were followed correctly or not.

What you say to James is quite correct - there are no time limits to the application of the Rules - maybe because in other EU Countries all employment protection rules apply as from the first moment of employment.

In reply to Mohamed Deen may I again point out that the Rules do not require a time in employment before they come into effect. The fact that an employee is on a probationary period is just one thing to be taken into account by the tribunal. IMHO a probationary period must not be too long - it may then be taken as a restriction on a man's employment opportunities - and the employer may be "unreasonable" not to formally end the probation period.

There is also the point that the employee has the employer on probation as well and can leave the employment on a short notice (usually) during the probationary period. This may then mean more problems for the employer in getting the work done.