Discrimination law uses a wide definition of employment which includes anyone who provides a service personally, so long as they are not operating as a business. There does not need to be a contract of employment. It appears from the judgment that the BBC did not challenge the jurisdiction of the Employment Tribunal to hear the claim.

http://www.rjw.co.uk/latest-news/article/nikki-sinclaire-mep-alleges-homophobia-in-uk-independence-party/

If we force women to choose between having a family and their careers, we immediately cut the national talent pool in half for every single job.

I am not a fan of the ‘can you help it?’ rationale for discrimination law, applied to sexual orientation and religious discrimination as well. Like all law, the issue is whether it serves a social purpose in promoting harmony and creating a free market.

But people can help being pregnant.

As I think you suggest, I imagine mistake generally to be a pretty tough argument to make good. One would require pretty cogent and compelling evidence even to prove it on a balance of probabilities, no?

Amicus says that the test is a narrow one but a wider test was applied by a tribunal in Reaney v Hereford Diocesan Board (although the church still lost). The problem is that the old test gives far too much weight to avoiding offence to members of a religion, many of whom will object to youth workers, for example, being gay. Youth workers are a very important category of people about whom Amicus and, as far as I know, advocates of the amendment, have failed to state a clear position. This troubles me greatly.

I do not claim that I am unbiased. This is a blog, after all.

In addition when saying that the decision by the House of Lords will be overruled because of “reasoned opinion” by the European Commission both he, and the Commission, are ignoring the fact that the question of whether the exemptions in the Regulations complied with the Directive was carefully considered by the High Court in the case of Amicus MSF Section, R (on the application of) v Secretary of State for Trade and Industry [2004] EWHC 860 In that case the Judge clearly stated that the European Directive had been properly implemented by the British Employment Regulations and the exemptions for religious organisations set out in those regulations were legal.

Nobody has appealed that decision to the European Court of Justice or to the UK Supreme Court and therefore that decision by the High Court represents the current legal position.

In a society governed by the rule of law courts decide what the law is and a legal opinion, however “reasoned” it may be, cannot overrule or take precedence over a decision by a court.

The High Court is entitled to have its decisions respected and supported by the British Government and Parliament. Decisions by national courts on questions of European Law can only be overruled by the European Court of Justice and not by the bureaucrats of the European Commission no matter how “reasoned” their opinions may be.

It’s not hard to tell on which side of the argument the author of this article sits…

There have been various tortuous attempts to bring the BNP within the protection of discrimination law which have all been unsuccessful and I cannot see there being any change to this record, mainly because the BNP acts in a way which is contrary to the values underlying this law.

What is necessary for someone to do is to analyse what is meant by trust. What does an employee trust an employer to do or not to do? In my view, it is about fair treatment. If an employer acts fairly to an employee then, objectively, he cannot say that he has lost trust. However, if he treats him unfairly, it will not always be the case that trust of being treated fairly in the future is lost. Our relationships would not last long if a single act of unfairness resulted in trust being destroyed in every case.

On the wider issue:

HHJ Richardson seems to be making the point that:

Unreasonable conduct will only breach the implied term if the rest of the Malik test (conduct calculated or likely to seriously damage trust, etc) is satisfied.

All that Fairbrother did was apply the reasonable range of responses test to the ‘without reasonable and proper cause’ part of the Malik test, with good reason (as HHJ Richardson explains in paragraph 43).

As you point out, HHJ Richardson himself says that it is difficult to conceive of conduct outside the reasonable range that does not breach the implied term.

Isn’t that basically the same point that Elias P made in Claridge?

I am drifting towards the view that, actually, the first instance tribunal in Niblett got it right, in substance even if not in form, when they baldly stated that all that is needed for a constructive dismissal was conduct outside the reasonable range. I know that they were wrong to cite Fairbrother as authority for that view, but, thinking logically…

I challenge anyone to come up with a plausible example of conduct that is outside the reasonable range but not likely to seriously damage trust and confidence.

http://www.emplaw.co.uk/researchfree-redirector.aspx?StartPage=data%2f20312142.htm

The problem with this case is that the tribunal chose not to expressly say that the claimant had lied. The appeal was granted because it was said that it followed from the findings of fact that the claimant had lied, even though the tribunal had exercised its discretion not to award costs.

I agree that costs should be awarded in certain cases but I do not think that it is useful to distinguish between serious and non-serious forms of lying. As tribunal costs are arguably punitive, a better solution is to say that a higher standard of proof should apply and costs should only be awarded when the tribunal has a high level of confidence that there has been a lie and it feels costs are warranted.

I’ll put my hands up and admit that the day job hasn’t given me the chance to read Buckland yet. However, I am intrigued by this notion of ‘fixing’ a breach of the implied term…

If my employer has done something so bad that I am entitled to say that I no longer trust him, but if he can nevertheless ‘fix’ the wrong he has done: Who is the judge of whether he has ‘fixed’ it? Obviously the test can’t be whether I actually trust him now (but if I do give him another chance then clearly I have waived my right to claim constructive dismissal). But an objective test strikes me as very problematic too: In most implied term cases, there has been a genuine breakdown of trust. It seems unduly harsh on the employee to say that an employer who has badly misbehaved can go through the motions and sign letters put in front of him by his dutiful HR manager, and thus absolve himself of liability for his wrongdoing, when the trust is in fact long dead and buried?

A deliberate and cynical lie under oath at Tribunal is, let us not forget, perjury and a serious criminal offence.

I don’t think there is any room for doubt that a deliberate and cynical lie is unreasonable conduct. Unreasonable conduct can be punished by a costs award. There really is nothing new here.

What is new is that someone has taken the time to spell this out, whereas normally it may get forgotten.

The bit of dark law, which makes the whole matter more stomachable on a day-to-day basis (and consistent with the authorities that say costs awards are exceptional) is this: Employment Judges don’t usually call a lie a lie, unless forced to do so. In fact, they avoid calling people liars whenever possible. Nor do they call unreasonable conduct as it is, unless forced to do so.

I would therefore suggest that, in order for a lie to: a) be called for what it is; and b) result in a costs award against the liar; it would generally take a pretty blatant, brazen and cynical lie – the kind of lie that, when seen in practice, you yourself would agree should have a costs award against it, no matter how rare costs awards are in Employment Tribunals, and no matter how much you would want to keep costs awards rare.

I therefore expect that, if Employment Judges are sensible in how they deal with this authority, no new legal principle will emerge and costs awards will remain rare.

In terms of this setting a bad precedent, I think that you are over exaggerating the effect of its impact because (1) parties do not lie on crucial matters most of the time – I would estimate it at about 25%!, and (2) those lies are not invariably cynical and deliberate – I would estimate it at say 33.3%. If you multiply those percentages, you get 8%. Now, those lies will only get picked up, say 60% of the time (I think that’s pretty complementary to the ETS), that leaves costs in about 5% of cases (I realise this figure does not factor in the mistakes that tribunals will make in erroneously finding that someone has deliberately lied on a crucial matter).

I further think that this case will not have the impact suggested because Employment Judges are famously slow in changing their habits, unless really forced to do so, and it leaves them, in my view, enough wriggle room to resist any application from an over eager representative.

Personally, I don’t think that it is a bad thing if there were costs awarded in 5% of cases where parties have been found to have flagrantly lied. When advising your client about costs, you simply inform them that if they are found to have deliberately lied to the tribunal that they will have costs awarded against them. Those telling the truth will not be put off and many liars will be deterred from lying.

If you retort that some truth telling Claimants will be put off from bringing their Claim, I would beg to differ. What difference would a perspective litigant think between being told that (1) costs are only awarded where it is found that you have been unreasonable, vexatious or your Claim is misconceived, or (2) costs are only awarded where it is found that you have been unreasonable, vexatious or your Claim is misconceived, for example, where you have been found to have deliberately lied to the tribunal?

Furthermore, there would also be the knock on benefit of the fact that some lying Respondents would be more likely to settle before a hearing with the threat of costs hanging over them if they are caught lying.