Once upon a time, in a land far far away (the 1980s), Christmas parties were an excuse for a good old knees-up, staggering amounts of inebriation, wildly inappropriate conversations, and for drunken staff to get anything off their chest to the MD safe in the knowledge that he (and in those days it almost always was a ‘he’) was too pie-eyed either to recognise them at all or as a minimum, to remember the incident the following day. If anyone even made it into work the next day, that is.

Of course, some things cannot (and, perhaps, should not) last and, like an outrider for the Four Horsemen of the Apocalypse spotting a town ripe for plunder, a keen employment lawyer one day identified Christmas parties as a ‘marketing opportunity’. Nowadays, if you want to know when Christmas is approaching, rather than simply waiting until your city looks as if it has been invaded by an army of incoherent yet smartly dressed zombies, you just have to wait for the first ‘Christmas party’ blog, article or newsletter warning you of the obvious pitfalls of allowing your staff a moment’s respite from a year of trying to do more with less, good economic news which has somehow not reached their employer and the nagging fear that their teenage children will now never, under any circumstances, leave home.

However, what was once original is now tired – indeed crowds of lurching suited zombies thronging the streets trying to find a nightclub that will let them in have instead been replaced by their equivalent in prose, with lawyers and HR consultants simply re-writing and re-working the same undead warnings. These may have been ‘original’ and ‘new’ and possibly even “trendy” during the 80’s and early 90’s but now they simply remind those in HR of what they already know – that no matter how you ‘set the tone’ or remind people of their responsibilities, if someone is going to be an idiot at a Christmas party, you can’t stop them. Now, as then, combining someone else’s alcohol, institutional cooking, and the eternal but nonetheless baseless belief that you will become more attractive as the evening goes on, is a recipe for trouble. But you knew that, right?

Courtesy of website Hereisthecitynews.com we can however add some new blood to the usual pre-party cautions: don’t talk about work, it advises, ask for a raise or steal the cutlery. No twerking, adultery or drunken use of the photocopier either. No wonder, perhaps, that a recent survey by life-and-pensions group Metlife reports that over 70% of UK workers would sooner have the money their employer spends per head on the Christmas bash than the party itself. And that is not just the old and jaded among us – the party spirit has also left some 65% of 18-24s preferring the cash, though that may be more a comment on their recent pay progression than a general cooling on the festive frolic front. After all, how could a little post-tax cash really compare with the boost to the spirits occasioned by watching your senior management forfeit their dignity on the dancefloor, a spectacle which discretion and good timing can now ensure is preserved forever on Youtube? What pleasure can mere money give you relative to the knowledge that at the end of the evening you will not have to wear black tie again for another year? You might discover that some of your management/employees are quite decent people, even if they have done their best to hide it over the preceding year. And in the end, do remember the wise words of US writer PJ O’Rourke: “After all, what is your hosts’ purpose in having a party? Surely not for you to enjoy yourself; if that were their sole purpose, they’d have simply sent champagne over to your place by taxi”.

So no holier-than-thou fliers this year. HR has a right to enjoy the Christmas party too, and if you do see the first stirrings of trouble in a dark corner of your chosen venue, you will know immediately the sensible and professional thing to do – run.

EMPLOYMENT TRIBUNAL CLAIMS

POST-FEES

UPDATE

In my earlier post I analysed the figures that the Government published on 18 October 2013, a few days in advance of the judicial review hearing challenging the introduction of fees for bringing employment tribunal proceedings. My analysis showed significant drop in the number of claims being submitted. The drop was far greater than the Ministry of Justice’s analysis appeared to suggest. The MoJ’s line was that “Employment Tribunal receipts were around 40,000 for July – September in line with historical quarterly trends“ [my emphasis].

My analysis was that once you get past the distorting effect of the 29 July 2013, when fees were imposed, claims had dropped by over 75%. (By ‘distorting effect’ I mean where there is a specific date for fees to be introduced, it will have the effect of many claims being submitted early, to beat the fees, with a corresponding decrease in claims immediately after that date).

One big caveat that was attached to the figures by the MoJ was that they were preliminary figures and subject to revision at a later date. That was a fair point, especially given that a claim is not “accepted” until the fee is paid, or remission granted. Inevitably with a new system – and a government one that involves IT – there will be delays and errors. Claims submitted with applications for remission of fees may have been caught in the system, unable to be included in an earlier count.

The MoJ has published its updated figures today. Very little has changed for the current year, but –  surprisingly – quite a lot has for last year.

In reviewing the figures for the current year, we are most concerned with quarter 2, being July to September 2013. Unhelpfully the information published by the MoJ does not follow the same format as that published in October. No information is given on the number of single claims submitted, so I am not able to revise my analysis on those (a drop of from over 4,000 claims per month on average, to  just 1,003 this September).

We do have figures for multiple claims. The provisional figures showed 1,034 multiple claims accepted in the quarter; the revised figures show 1,061, a modest revision. Unfortunately, a month-by-month breakdown is not given so a similar comparison as in my last post cannot be done.

One can also look at “receipts” for the quarter. In my view this is not as good a measure as single or even multiple claims, but we can at least see to what extent there have been revisions from the provisional figures. The figures in October showed receipts of 38,963. Today’s revised figures show receipts of 39,514. A modest increase of about 1.4%.

Therefore, now we have the revised figures, we can see that very little has changed. The number of claims remains significantly down following the introduction of fees.

What is curious is what has happened to the figures for 2012/13. These show a significant downwards revision. In July and October 2013 figures were published for 2012/13. These showed the following:

The figures published today show a significant difference:

No note or explanation is provided in the commentary that accompanies the figures. It would be unusual for such revisions to be of this size and made so late. Needless to say, enquiries are being made.

If one wanted to show a consistent downward pattern in employment tribunal claims since, say, May 2010, then it would certainly be helpful to revise 2012/13 down by at least this amount. I’m not being cynical and I’m sure there’s a perfectly reasonable explanation…………..

@AlexLock

Ms Eweida, you may recall, is the British Airways employee who wanted to wear a cross on a necklace over her uniform so that others could see it. She considered that that was a religious belief. Over-simplifying, doing what she wanted to do meant a breach of her employer’s dress code. Ms Eweida complained that, amongst other things, she was the victim of an act of indirect discrimination.

The test of indirect discrimination is now to be found at Equality Act 2010, s. 19. The constituent elements of the test are:

1. A provision, criterion or practice (“PCP”) must be applied to the claimant;
2. The respondent must apply it (or the Tribunal must be satisfied that they would apply it) to people who do not share the claimant’s protected characteristic (in this case, holding the belief);
3. The PCP “puts, or would put, persons with whom [the claimant] shares the characteristic at a particular disadvantage”;
4. The PCP puts or would put the claimant at that disadvantage; and
5. The respondent cannot show it to be a proportionate means of achieving a legitimate aim”.

In the domestic proceedings Ms Ewieda failed at the third hurdle. She could not establish that there were others who shared her particular belief. This is often referred to as the requirement for a “group disadvantage”. Solitary disadvantage, the Court of Appeal found, was insufficient. Denied a domestic remedy, Ms Eweida went to the European Court of Human Rights. Again, rather over-simplifying, the ECtHR decided that the wearing of a crucifix in the manner proposed by Ms Eweida amounted to a manifestation of religion falling within Art 9(2) of the Convention:

Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

The Court decided that the interference with the manifestation was not, in the particular circumstances, proportionate. The UK should have protected Ms Eweida’s right to manifest her religion and had failed to do so.

Whilst the reasoning was clear it left unaddressed a very significant question. The claim had not failed because the Court of Appeal had decided that the PCP could not be justified; it failed because it could not be shown to have had the necessary indirectly discriminatory effect. The question of justification did not arise. So was the effect of the ECtHR’s decision that element 3 of the statutory test was to be regarded as incompatible with Article 9.

The Court of Appeal has now addressed this question in its decision in Mba v Mayor and Burgesses of the London Borough of Merton. Mrs Mba wanted to obey the Fourth Commandment and refrain from working on Sundays. The Council needed to provide care 24 hours a day and seven days a week to those living in the children’s home at which Mrs Mba worked. Having accommodated her desire not to be rostered on Sundays for a period, the Council decided that it could no longer continue to do so. Following an unsuccessful grievance, Mrs Mba resigned.

It was accepted that the requirement to work Sundays was indirectly discriminatory. The argument was focussed on issue 5 above: whether the justification defence was available. There was no dispute that the Council had a legitimate aim so that the argument was focused, narrowly, on the question of proportionality. It was not a case, therefore, directly concerned with what one might call “the unresolved Eweida question”.

The Employment Tribunal had, in assessing proportionality, taken into account three specific factors. Only one matters for present purposes: the Tribunal had taken into account the fact that sabbatarianism was not, in its view, a “core component of the Christian faith”. A lot of Christians work on Sundays.

Christians might take the objection that judging what religion requires by what adherents actually do is a misguided exercise. We are all sinners. The Court focused on a rather different issue: whether the number of people affected was relevant to justification.

Maurice Kay LJ decided that that the Tribunal had erred in its approach to justification. It should not have been asking how many Christians were affected. It should have been looking at the extent of the impact on sabbatarians, i.e. those who shared Ms Mba’s particular belief. Once one was satisfied that others were affected adversely (so as to jump hurdle 3), the number of those affected was not something that was relevant to the assessment of proportionality. He specifically did not place reliance on either Article 9 or Eweida which he considered to be a case that was “entirely fact sensitive”.

Elias and Vos LJ took a different approach – one that depended upon the impact of Article 9. Patrick Elias (whom I adore with a near religious fervour) tackles the unresolved Eweida question head on. He says the “group disadvantage” requirement (ie, hurdle 3) cannot be read down. Reconciling the domestic legislation with the Eweida decision will in practice, therefore, either take a differently minded Court of Appeal, the Supreme Court or legislation. Article 9 could be used, however, to determine how the proportionality question should be answered. The effect of Eweida was that:

It does not matter whether the claimant is disadvantaged along with others or not, and it cannot weaken her case with respect to justification that her beliefs are not more widely shared or do not constitute a core belief of any particular religion.

Both Elias and Kay LJJ took the view that the smaller the group that shared a claimant’s belief the easier it should be to accommodate it. If number of adherents was a relevant issue, therefore, it had the opposite effect to that which the respondent might have supposed.

With all three judges deciding that the Tribunal had erred in law, did Mrs Mba win? Nope. It was decided that since there was in practice no way of accommodating Mrs Mba’s beliefs, the outcome would have been no different even if the Tribunal had adopted he correct analysis.