Equal helpings
Elements of the Equality Act continue to serve up examples of how a school should adapt its approach to employment issues. Caspar Glyn flags up an important legal distinction and reviews a recent equality case employment
It has long been the case that any agreement that settles a discrimination claim has to observe certain formalities. First among these is the requirement that the employee who is settling their claim receives independent advice from a lawyer, usually a solicitor or other qualified person, most commonly a trade union officer. The Equality Act has introduced an uncertainty into the identity of this lawyer.
The days when
In the good old days, we all knew that the employee’s lawyer was the person who could advise the employee: that made a lot of sense, for who knew the claim best and who could advise the employee most cost-effectively? Why, of course, their lawyer. However, a piece of unhappy drafting in section 147 of the Equality Act has got the leading QCs in employment law giving varying answers.
The Act appears to provide, on first reading, that a person acting for an employee is prohibited from being
an independent advisor. That is all the poor employing school needs: the requirement now to pay another lawyer to sit down with the employee and advise her or him as to their rights.
Safe intent?
This interpretation would be an unwelcome outcome. It would overturn well established and uncontroversial practice, it would be against the spirit of the explanatory notes and would create another bar to settlement and a further expense.
The view at Cloisters is that this is not the intent of the Act. It is still reasonably safe to conclude a settlement agreement with an employee or ex-employee using their lawyer as the independent advisor. However, only a court or tribunal can determine this point authoritatively. Until that happens, and particularly where the stakes are high, then it is worth taking a cautious approach. The best way to do this is to use a COT3, which is a document entered into under the auspices of ACAS. That is not much use, however, where speed is of the essence and the ACAS advisor is hard to reach.
On balance, the former employee’s lawyer’s still being their independent advisor is consistent with the Explanatory Memorandum, provides a common-sense outcome and is in accordance with long-established practice. If there had been an intention to change the position, this would have been made much clearer.
Equal before the law? Not with religion
Messrs Hall and Preddy are in a same-sex civil partnership. They booked a double room at the defendant’s B&B. They were not allowed a double bedroom as the owners were Christians who believed that the only divinely ordained sexual relationship is that between a man and a woman. Both sides relied on the right to respect for privacy and to be free from discrimination. The sexual orientation rights clashed against the belief rights. Hall and Preddy won £1,800. They were treated less favourably because they were gay.
Parliament has now framed laws where it is no longer the case that they should automatically reflect the Judeo-Christian position. This is the third case (the other two in the context of employment) where a “belief” cannot justify or excuse less favourable treatment of another. One must exercise caution in employment matters as treatment of another person because of a protected characteristic such as gender, sexual orientation, race or disability is no defence, even if as a result of the principles of a well respected religion.
Caspar Glyn is a leading employment barrister. Caspar can be contacted on cg@cloisters.com.
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