Purpose is a two-faced godOn 1 Feb 2001 in Personnel Today Is the law deliberately designed to make your life difficult? Some days itis hard to believe it isn’t. Here two leading lawyers sound off about someparticularly topical bugbears. And, they warn, don’t expect things to get anybetter…Purpose is a two-faced godBusiness constantly asks the law to give certainty. Increasingly it fails todo so and many wonder why. One reason is that these days we are constantly toldthat our laws should be interpreted “purposively”. In other words,look for what the legislator intended to mean and don’t worry to much about thewords actually used. This can be beneficial – it plainly makes the law lessrigid – but it is not a good recipe for certainty. This is particularly so whenthere are different views as to the chief purpose of a particular law. Purposecan vary with the perspective of the onlooker and this can foul things up foreveryone. Take an example from The Transfer of Undertakings (Protection of Employment)Regulations. Many people buying businesses plan changes to increase efficiencyand profitability. Most of these changes will be “measures” withinEuropean and domestic law. Since 1981 the law has required measures to be thesubject of consultations with employee representatives. Employers are requiredto consult “with a view to reaching agreement”. It seems from this that the legislator would take a benign view whennegotiations take place and result in an agreement being reached. In otherwords the purpose of this law is to encourage agreements. What could be betterthan employers and employees considering the future of a business together andagreeing a way forward? Then see what the judges did with this law. According to the ECJ and theHouse of Lords, any agreements reached by employees in these consultations arenot binding. The judges’ reasoning is that, in their view, the principlepurpose of the directive is to protect employee’s rights. Apparently, employeesneed protection so much that their elected representatives or trade unionscannot be trusted to look after them when a business changes hands, even if thenew deal leaves employees better off. So, like Janus, purpose seems to be a godthat looks in two directions at once. Many will ask: why bother to consult if no agreement can be relied upon?Because, to add insult to injury, you will be sued if you don’t. The law saysthat you may have to pay up to 13 weeks’ pay to each affected employee if youdo not consult. Remember, too, what may have to be done to begin consultation.If a workplace has no recognised trade union (and three-quarters of workers inthe UK are not in trade unions) or no representatives exist, then electionsmust be held to identify them. The trouble here is that no one has been able to cut through the morass ofgood intentions and settle on a sensible balance of interests. In 1998 the DTItried to persuade European legislators to allow representatives to do deals foremployees without success. In the end everyone is left to muddle throughdespite the law – all because the judges and legislators cannot agree on itspurpose. Fear the worst: there is much more where this came from! Stephen Levinson is a partner at KLegal, the law firm associated withKPMG Guilty until proven innocent?Handling a sexual harassment claim is one of the most difficult problemsfacing employers. The sensitive nature of such complaints, the potential forunlimited compensation and above all the difficulty in balancing the rights ofthe victim and the alleged harasser while determining the issues, means eventhe most experienced human resources manager must tread carefully. The latest Equal Opportunities Review survey reveals that compensation insex discrimination cases averaged £7,208, representing only a 5 per centincrease over the previous year. This contrasts with an increase of no lessthan 65 per cent in compensation in race discrimination cases now running at anaverage of £9,948. There were only 206sex discrimination cases which resulted in compensation awards and thestatistics suggest that sexual harassment which, after all, only represents apart of the discrimination total, is, at least in terms of financialconsequences for employers, small beer. However, the practical experience suggests the reality is rather different.The great majority of cases settle, and no figures are available which giveeither the numbers or the compensation paid. The true cost to the employerincludes absences through ill health, management time spent in investigation,compensation paid to victims, costs of replacing staff sacked for harassmentand, of course last but not least, lawyers’ fees. If identifying harassment is sometimes difficult, determining liability canalso be complex. The “strict liability” test raises the spectre ofemployers being liable for the actions of employees in the course of theiremployment. Employers will be held liable for sexual harassment about whichthey were informed but which they did not seek to remedy. But what if the employerdoes not know about the harassment? An employer is still potentially liable forthis because the law actually states that the employer is liable for adiscriminatory act by an employee “whether or not it was done with theirknowledge.”There is no doubt that sexual harassment can blight the lives not only ofvictims, but also those wrongly accused. While it is not always easy to form aview on the rights and wrongs of a particular case, I am confident I haveencountered instances where a relatively junior employee has “played thesexual harassment card” in an attempt to wreck the career of a seniorconsidered, for one reason or another, to be an enemy. No smoke without fire isan all too common reaction. It is vitally important that the investigation processwill not only uncover sexual harassment where it takes place, but also thosewho make wrong accusations who should, of course, themselves then be subject todisciplinary action. The position under UK law is that the onus of proof always remains with theperson alleging sexual discrimination albeit, where less favourable treatmentis established and not explained, the court or tribunal is permitted to draw aninference of discrimination. This is all set to change under a EuropeanDirective on the burden of proof in sex discrimination law. The UK has until 22July to comply. The directive requires that when people establish facts fromwhich it may be presumed there has been direct or indirect discrimination, itshall be for the employer to prove that there is no breach of the principle ofequal treatment. It might be thought this would have no obvious application in sexualharassment. What facts have to be established in order for there to be apresumption of discrimination resulting in a reverse of the burden of proof? This is not an easy question. If special attention given to an individualwas shown, would it then be presumed that that was on account of sex? Wouldthat create a situation where the burden passed and any doubt had to beresolved in favour of the person alleging sexual harassment? How would that stand in relation to theHuman Rights Act? These are all difficult questions but at the very least, theburden of proof directive can only encourage sex discrimination claimsincluding those relating to harassment. Anthony Fincham is employment partner at CMS Cameron McKenna Comments are closed. Previous Article Next Article Related posts:No related photos.