Supreme Court verdict follows four-year fight by union and is a victory for everyone in work
Employment tribunal fees will be scrapped after UNISON won a landmark court victory against the government this morning.
The Supreme Court – the UK’s highest court – has unanimously ruled that the government was acting unlawfully and unconstitutionally when it introduced the fees four years ago.
From today, anyone who has been treated illegally or unfairly at work will no longer have to pay to take their employers to court – as a direct result of UNISON’s legal challenge.
The government will also have to refund more than £27m to the thousands of people charged for taking claims to tribunals since July 2013, when fees were introduced by then Lord Chancellor Chris Grayling.
Anyone in England, Scotland and Wales wanting to pursue a case against their employer has had to find as much as £1,200. This has been a huge expense for many low-paid employees, says UNISON.
Reacting to this morning‘s decision, UNISON general secretary Dave Prentis said: “The government is not above the law. But when ministers introduced fees they were disregarding laws many centuries old, and showing little concern for employees seeking justice following illegal treatment at work.
“The government has been acting unlawfully, and has been proved wrong – not just on simple economics, but on constitutional law and basic fairness too.
“It’s a major victory for employees everywhere. UNISON took the case on behalf of anyone who’s ever been wronged at work, or who might be in future. Unscrupulous employers no longer have the upper hand.
“These unfair fees have let law-breaking bosses off the hook these past four years, and left badly treated staff with no choice but to put up or shut up.
“We’ll never know how many people missed out because they couldn’t afford the expense of fees. But at last this tax on justice has been lifted.”
UNISON assistant general secretary Bronwyn McKenna added: “The Supreme Court correctly criticised the government’s failure when it set the fees to consider the public benefits flowing from the enforcement of legal rights enacted by Parliament.
“The effective enforcement of these rights is fundamental to parliamentary democracy and integral to the development of UK law. UNISON’s case has helped clarify the law and gives certainty to citizens and businesses in their everyday lives.”
The decision marks the end of a four-year fight by UNISON to overturn the government’s introduction of fees.
Employment tribunal fees were introduced on 29 July 2013 and started at around £160 for a type A claim, such as wage claims, breach of contract, and £250 for a type B claim, covering issues such as unfair dismissal, race and sex discrimination.
There was also a further hearing fee of £230 for Type A and £950 for Type B claims. Appeals at the employment appeal tribunal attracted an additional £400 lodging and £1,200 hearing fee.
The seven Supreme Court judges ridiculed the government’s misunderstanding of “elementary economics, and plain common sense”, when it claimed higher fees would mean increased demand.
The judges also said fees were set so high, it “has had a deterrent effect upon discrimination claims, among others”, and also put off more genuine cases, than the so-called vexatious claims the government claimed fees were meant to deter.
The Supreme Court stressed that the administration of justice is not merely a public service, where courts and tribunals are only of value to the “users” who appear before them and who obtain a remedy.
It said access to justice is of value to society as a whole, especially where cases establish legal rules and principles of general importance.
The Court said UNISON’s evidence showed the fall in claims when fees came in was “so sharp, so substantial and so sustained” that they could not reasonably be afforded by those on low to middle incomes.
It also held that fees particularly deterred the kind of ‘low-value’ claims generally brought by the most vulnerable workers.
Former Blair advisor Matthew Taylor’s review of the gig economy has disappointed just about everyone except the Tory government that commissioned it, and the gig economy bosses. Stephen Cavalier, the chief executive of Thompsons Solicitors said the recommendations of the review are “feeble and add another layer of unnecessary complexity”.
The review recommends that gig economy workers should get sick pay and holiday leave, but doesn’t recommend legislation banning zero-hours contracts. The review doesn’t advise workers be guaranteed minimum wage, though companies will be expected to show how workers could realistically earn at least 1.2 times the living wage of £7.50 an hour, for example by modelling the rate at which they must complete tasks to earn such pay.
The idea is that would-be workers can log into a platform and see “real-time earnings potential”. If they can’t reasonably earn a living wage with the work on offer, the report proposes it should be up to the worker to decide whether they should take up the work or not — but that also means that companies will not be required to pay minimum wage to those who knowingly agree to take on work at less busy times.
Under these proposals, if a worker chooses to “log in” to work at a time when demand is low, they might not earn the minimum wage — although the gig company would have to use its real-time data to warn them in advance.
Taylor’s suggestions include a new category of worker called a “dependent contractor”, sitting between fully employed and self-employed status.
“The creation of a new ‘dependent contractor’ status for gig economy workers would further complicate existing categories of how workers are defined in law,” Cavalier said in response.
TUC general secretary Frances O’Grady said on Twitter that we “don’t need new employment status.” She added: “Unions’ court victories prove many so-called self-employed are workers and should get the [minimum] wage.”
She added: “Platform firms are pleading special status but really the new tech is just hiding old-fashioned casualisation and exploitation.”
Theresa May, who is launching the review is expected to say changes to gig economy companies will avoid “overbearing regulation”. The Guardian reported May will say: “At its best, a job can be a genuine vocation, providing the means to intellectual and personal fulfilment, as well as economic security”.
The weakness of Taylor’s proposals should not come as a surprise. He told a TUC event in London last month that (on the basis of undisclosed evidence) “up to three out of four workers” wanted flexible arrangements and changing that was the “last thing we should do”. He went on to say that the UK’s flexible job market was a something other countries envied.
The Daily Telegraph Letters to the Editor, 16 June 2017
SIR – The construction of buildings in London was controlled between 1667 and 1985 by the London Building Acts and associated construction bylaws.
These were administered by district surveyors, appointed by the superintending architect to the Greater London Council but independent as statutory officers who not only helped write the acts but also had the final say over any forms of construction. Many sections of the bylaws included the phrase “to the satisfaction of the district surveyor”.
The 28 district surveyors (all highly experienced construction professionals, usually both chartered engineers and chartered surveyors), working with the GLC’s buildings regulation department, ensured that all buildings built in the old London County Council area were safely built.
The old maxim in the service was: first, make sure it does not fall down; secondly, make sure it does not burn down; and thirdly, use your common sense for all other matters.
This excellent service was abolished in 1985 and replaced with the inferior National Building Regulations system. The London district surveyors were not responsible to any council and so could always do what they saw fit, free from political or financial pressure.
The fire at Grenfell Tower would not have happened under the London Building Acts and bylaws. Proper fire breaks in the cladding would have been insisted on and, more importantly, enforced. Controlling fire-spread was the foundation of the of the 1667 Act for the Rebuilding of London and its basics were still in place when I stood down as district surveyor for Chelsea in 1983.
No combustible materials would have been allowed on the outside of a building, no cavities in cladding allowed to create vertical fire or air pathways. Vertical and horizontal fire breaks were the foundation of the protection principles.
A building would have been regularly inspected by the respected London Building Regulations Department of the GLC and if found wanting, the owners, whoever they were, would have been prosecuted.
My former district surveyor colleagues will not be surprised that this disaster happened. Whenever politicians and accountants are in ultimate control of complex building matters, in place of experienced construction professionals who do not have to answer to them, we will see more disasters like this one.
Above: boss Charlie Mullins in characteristic pose
The Court of Appeal yesterday ruled that a plumber who claims he was sacked following a heart attack, was a ‘worker’ and thus entitled to some work-related rights, according to the decision in Pimlico Plumbers Ltd and another v Smith.
The judgment has important implications for so-called ‘gig economy’ companies that claim their workers undertake services on a self-employed basis and so have no employment rights.
Gary Smith worked for Pimlico Plumbers from 2005 until 2011. The agreement between the company and Mr Smith described him as a “self-employed operative”.
The wording of the contract suggested that he was in business on his own account, providing a service to Pimlico Plumbers.
Smith was required to wear Pimlico’s uniform displaying their logo, use a van leased from Pimlico (with a GPS tracker and the company’s logo), and work a minimum number of weekly hours.
However, he could choose when he worked and which jobs he took, was required to provide his own tools and equipment, and handled his own tax and insurance.
There was no express term in the agreement allowing Mr Smith to send someone else to do the work.
Pimlico Plumbers did not guarantee to provide Mr Smith with a minimum number of hours. Following the termination of this arrangement, Mr Smith brought claims for unfair dismissal and disability discrimination.
The employment tribunal found that he could not claim unfair dismissal because he was not an employee.
However, the tribunal decided that he could claim disability discrimination as a ‘worker.
The Employment Appeal Tribunal (EAT) agreed with the employment tribunal, and the Court of Appeal has now dismissed Pimlico Plumbers’ appeal.
Unlike recent high-profile judgments involving Uber drivers and CitySprint couriers, this ruling is binding on other courts and tribunals.
Pimlico Plumbers boss and prominent Tory donor Charlie Mullins, decorated his fleet of vans with pictures of Margaret Thatcher on the day of her state funeral. He says there is a “good chance” he will take the case to the Supreme Court, but so far he’s lost every round of the legal fight.
The Appeal Court decision is likely to be a key authority in any forthcoming cases on employment status in the gig economy. However, it is important to note that this decision did not find that the plumber was an employee of Pimlico Plumbers.
People categorised as workers have a right to minimum wage and to paid annual leave, along with some other procedural rights, such as a right to be accompanied at any form of disciplinary meeting, but they do not enjoy the full range of protections given to employees and are not subject to the PAYE system applicable to employees.
Frances O’Grady of the TUC said: “This case has exposed once again the growing problem of sham self-employment.
“Unscrupulous bosses falsely claim their workers are self-employed to get out of paying the minimum wage and providing basics like paid holidays and rest breaks.
“But the best form of protection for working people is to join a union in your workplace.”
The GMB is currently supporting a group of Deliveroo food couriers in Brighton currently classed as ‘independent contractors’, who have given two weeks notice of industrial action for better pay and more hours.
The GMB’s Paul Maloney said: “We stand with the riders against Deliveroo, another company trying to duck its obligastions and responsibilities by making its workforce ‘independent contractors’.”
The government has only now, after more than a year’s delay, released a report warning that “unscrupulous” employers were in a position to exploit low-paid and low-skilled workers.
A similar finding when the Uber case goes to the EAT would be bad news for the company, as it could lead to it having to radically overhaul its contractual arrangements with its drivers.
Denial is a dramatisation of the libel case brought by Holocaust denier and Hitler apologist David Irving against the American academic Deborah Lipstadt (author of Denying the Holocaust, in which Irving featured prominently) and Penguin Books (which published her book).
The film has received mixed reviews. Some critics have described it as “hammy”, “stuffy and repetitive”, and “a standard issue legal drama”. The character of Lipstadt has also been criticised as “so predictable” and “an impassioned mouthpiece with no internal life.” And given the well-known result of the real-life trial — in 2000 a High Court judge found that Irving had knowingly distorted history and ruled in favour of Lipstadt and Penguin Books — the eventual outcome of the trial is not a source of tension in the film.
But the film is well worth seeing. Irving is such a truly repulsive character, and the contrast between him and Lipstadt so absolute, that the audience can only enjoy the wait for Irving’s eventual defeat in court, and then relish the moment of his demise Irving does not look at people. He leers and scowls at them. When he speaks, his face twists into a grimace. He is full of his own bloated self-importance, but fawning and sycophantic towards the judge in court.
During the film Lipstadt and her legal team watch clips of Irving addressing neo-Nazi rallies, making racist “jokes”, and denying the genocide of the Holocaust. The cheap and grainy quality of the clips helps emphasise the tawdry and seedy nature of the character they show. Irving also excels in a poisonous anti-semitism-by-innuendo. “Who pays you to write your books?” asks Irvine when he “ambushes” Lipstadt in a lecture at the start of the film.
According to his libel claim, Lipstadt is “part of a world conspiracy to destroy his reputation.” And in one of the court scenes he refers to “those who funded her (Lipstadt) and guided her hand.” But, for all his bravado, Irving is also a pathetic figure. As Lipstadt’s barrister points out, Irving wants to be seen as a great writer and historian and hankers after respect — “England is a club and he wants to be a member of it.” That makes Irving’s defeat all the more complete and all the more enjoyable when it arrives.
He loses the trial, he is exposed as a charlatan rather than a historian, and when he tries to shake the hand of Lipstadt’s barrister — as if the trial had been a public school sixth form debate — the latter abruptly turns his back on him. Lipstadt, on the other hand, is built up into a champion of the oppressed. Her name, Deborah, she explains, means leader and defender of her people. She is a woman and a Jew, which is one reason why Irving is so intent on pursuing her. And she has no interest in negotiating, compromising or reaching an out-of-court settlement with Irving.
She also spells out the importance of the case in which she is the central figure: if Irving wins, then Holocaust denial receives a judicial stamp of approval as a legitimate opinion. There is no face-to-face confrontation between Lipstadt and Irving in the film. But there is a succession of dramatic confrontations between Lipstadt and her legal team.
Lipstadt wants to give evidence at the trial. Lipstadt wants Holocaust survivors to give evidence at the trial. Lipstadt promises a Holocaust survivor that the voices of those who did not survive will be heard at the trial. But her legal team will have none of this.
Almost to the point of caricature, they are hardheaded legal professionals who base their strategy solely on what is most likely to achieve victory in court. When Lipstadt objects that if she does not testify in court people will call her a coward and that she would have to live with that for the rest of her life, her barrister responds: “That’s the price to pay for winning.”
Not that her barrister is portrayed unsympathetically: he seems to live off red wine (preferably drunk out of a plastic beaker rather than a glass), sandwiches and cigarettes. There is the same element of caricature about the High Court judge: apparently unaware of the invention of the computer, he writes his judgements with a fountain pen while drinking freshly made tea. And, without the assistance of a butler, he would surely never manage to put his wig on straight.
Although Denial was completed before Trump’s election victory, the film’s scriptwriter, David Hare, has emphasised that the film also has a more contemporary element: it takes a dig at Trump’s brand of post-factual politics: “[In this internet age] it is necessary to remind people that there are facts, there is scientific evidence and there is such a thing as proof. That was true with this court case and it’s important to say it now. [Trump’s politics] is a non-evidence-based approach to politics, what you might call Trumpery. It’s terribly dangerous.”
Cinema-goers whose idea of a good film is a five-hour-long adaptation of a novel by Proust, directed by Wim Wenders, and full of lengthy shots of dreary Swedish coastlines punctuated by endless internal monologues should steer well clear of Denial. But for those who like a film where the good guys win and the bad guys lose, Denial is a must-see.
(This article first appeared in – of all places – the pro-Brexit Morning Star, on January 31 2017)
It’s not possible for the Tories to both protect workers’ rights and satisfy their red line demand that the European Court of Justice should have no legal effect in Britain, writes KEITH EWING
NOW that Brexit is inching closer, a number of questions are becoming more urgent. Not least is the question of workers’ rights.
What is to happen to the great body of labour law that derives from the EU?
Social Europe may be dead but there is an inheritance to protect. The Tories have promised that workers’ rights will be guaranteed. But they also promised that Brexit would ensure extra funding for the NHS. How equally hollow is the promise on workers’ rights?
Hard Brexit will expose workers’ rights on three fronts. In the first place, it means that any new rights that are developed at EU level will obviously not apply in Britain (or to those parts that voted Remain).
There is not much in the pipeline at the moment. But there are, nevertheless, proposals in the admittedly weak European Social Pillar for the protection of workers in the new tech industries for better transparency in the employment relationship and for EU unfair dismissal laws. These will not apply here.
A second consequence is that even if Social Europe is dead, rather than dying, there is still the framework of existing rights and the opportunity to develop them through litigation and access to the European Court of Justice (ECJ).
For those on the left, there is of course the haunting impact of the Viking and Laval cases, placing the rights of business above the rights of workers; the right to freedom of establishment trumping (in every sense of the word) the right to strike.
We are also traumatised by the recent Usdaw case in which the Collective Redundancies Directive was narrowly interpreted to defeat claims by workers who had been employed by Woolies, and before that the Alemo-Herron case in which the Acquired Rights Directive was narrowly applied in the interests of business where public services are outsourced. As a result, workers lost the right to the continuing protection of collective agreements that had previously applied.
But while all that may be true, there have also been important victories. On equal pay, it was the ECJ that established in Britain the principle of equal pay for work of equal value. And on discrimination, it was the same court that swept away the arbitrary and artificial limit on damages that had been imposed in domestic law. On working time, it was the ECJ that established the right of all workers to holiday pay, removing the Blair government’s denial of holiday pay to Bectu members employed on short-term contracts.
Also on holiday pay, it was the ECJ that addressed the problem of employers basing holiday pay entitlement on part rather than all of the worker’s normal wages, and the other problem of employers preventing workers in some cases (notably illness) from carrying over holiday pay from one year to the next.
It stamped out other working time abuses, such as employers not treating as working time the periods spent on call at the workplace, and employers not paying holiday pay because it is already rolled up in (inadequate) monthly or weekly wages.
True, it will not be a disaster if we are denied access to the ECJ, but it will be a significant loss all the same. If the existing EU rights are “novated” into British law as part of the process of the “Great Repeal Bill” promised by the Tories, the substance of these rights will be determined by the British courts whose decisions led to many of these successful challenges in the ECJ. It will lead inevitably to a two-tier system of employment law in which our EU origin rights will as a result of litigation fall behind those operating in the EU 27.
Brexit thus means more power for the British courts and more opportunities for British judges to protect workers’ rights.
There may be some on the left who are content as a result. If so, they have a poor grasp of history.
But this of course is not the end of it. A third consequence of a hard Brexit is that there is nothing to stop the Tories chipping away at EU origin employment rights, while retaining the basic structure. What is to stop the Tories restoring the restrictions on holiday pay that were ruled unlawful in the Bectu case?
And what is to stop them revisiting Beecroft and reinstating the limit on compensation in discrimination cases? The answer is nothing.
After the “Great Repeal Bill” this will all be British law, albeit EU origin British law, and it can be changed with impunity.
The Tories can keep the agency workers’ regulations, but respond to business demands that they should provide even less protection. They can keep redundancy consultation but follow Vince Cable down the path of limiting the obligations on employers.
Should these or other steps be taken, there will be no right of access to the ECJ to put a brake on the government. If, as seems likely, our economy is to be tied even more closely to that of the US — as the May government begins to look across the Atlantic rather than the Channel — the prospects of continuing deregulation on a serious scale are by no means unrealistic. But about all that is left to deregulate are the rag bag of EU employment rights whose future existence now relies on the slender thread of a promise by May and David Davis.
That promise is built on a contradiction: it is not possible for the Tories simultaneously to protect workers’ rights and satisfy their red line demand that the ECJ should have no legal effect in Britain. A choice has to be made. The right choice is clearly set out in the Workers’ Rights (Maintenance of EU Standards) Bill 2016, recently presented to Parliament by Labour and SNP MPs, which in a Schedule reveals the breathtaking scale of our dependence on EU law for protection in the workplace.
Not only does that Bill seek to preserve these rights post-Brexit as a platform on which a future progressive government could build, but it does so by requiring that in “all legal proceedings [before the UK courts], any question as to the meaning or effect of any EU Worker Right shall be determined in accordance with the principles laid down by and any relevant judgment of the ECJ.”
The latter is an essential feature of any future settlement. But it is unlikely to be the choice made by May and her hapless government.
Keith Ewing is is professor of public law at King’s College London and president of the Institute of Employment Rights
Above: Farage spreading lies and hatred on the morning Jo Cox was murdered
The filthy racist liar and Trump groupie Farage has sunk to new depths by first joining German fascists in blaming Merkel for the Berlin truck attack, then linking Jo Cox’s widower to “extremists” and, finally, accusing Hope Not Hate of being “violent and undemocratic.”
Speaking on LBC, Farage argued that Merkel was to blame for what happened because she supported the border control-free Schengen zone.
“These leaders of Europe support Schengen,” he said. “They support the total free movement of people without borders. And the free movement of people doesn’t just mean the free movement of good people. It means the free movement of bad people, as well.”
Farage said: “Well, of course, he would know more about extremists than me, Mr Cox. He backs organisations like Hope Not Hate, who masquerade as being lovely and peaceful, but actually pursue violent and undemocratic means.”
Farage added: “And I’m sorry, Mr Cox, but it is time people started to take responsibility for what’s happened.”
When the LBC host, Nick Ferrari, pointed out that Cox surely knew the consequences of extremism, Farage replied: “Yes, it’s a terrible thing what happened, with the murder of his wife.
“But he continues to be active in the political arena and, as I say, given some of the organisations that he supports, I can’t just stand here and say, well, I’m not going to respond.”
In a statement Hope Not Hate said: “That Nigel Farage made his remarks in the context of a discussion about Jo Cox, who was so brutally murdered earlier this year, makes them all the more poisonous and hateful.”
The organisation posted an appeal on its website for help pay for any legal case. “Help us take Nigel Farage to court,” it said, with a link to a donation button.
Any leftists foolish enough to have advocated a “Leave” vote in the referendum may feel this is a particularly appropriate way to make amends for their dreadful error.
Well, well, well – Ian, the Black Cab Driver, who was born just off the Caledonian Road and who drove me home from the office late last night you are absolutely correct – the Employment Tribunal “is not silly”, they know what a taxi driver is when they see one and, most significantly, they have decided that Uber drivers are not genuinely self-employed and are in fact “workers”.
The Employment Tribunal did not go so far as to say that the two Uber drivers were working in conditions of “modern-day slavery”, as suggested by Ian, and they were not asked to determine whether or not the Uber drivers were employees, but they did agree with Tom Linden QC’s arguments that the two Uber drivers who brought their case are “workers” within the meaning of s.230 of the Employment Rights Act 1996.
The significance of this judgment is that as workers, Uber drivers will be entitled to:
5.6 weeks’ paid annual leave per year (equivalent to 28 days’ leave including Bank Holidays)
a maximum 48 hour average working week
statutory minimum daily and weekly rest breaks
the national minimum wage and national living wage
protection under the ‘whistleblowing’ legislation
protection against unlawful discrimination
not to be treated less favourably if they work part time
protection against unlawful deductions from wages
Workers do not have the same rights as employees, as workers are not entitled to statutory employment rights such as: unfair dismissal, statutory redundancy payments or TUPE protection. Even so, the implications for Uber are significant in that a requirement to pay a driver the minimum wage and 5.6 weeks’ holiday per year is not to be sniffed at – particularly given the sheer volume of Uber drivers on the roads in the UK.
What next?
It is inconceivable that Uber will not seek to appeal this decision, I believe they have already said that they will appeal, and the appeal will be fascinating to follow. In the meantime, this decision will also have far broader significance than Uber drivers, as the “gig-economy” spreads far and wide and there is no doubt that the significance of this case will be picked up by anyone working under similar terms and conditions. Following hot on the heels of the announcement earlier this month that the Prime Minister has engaged Matthew Taylor (previously head of the No 10 Policy unit under Tony Blair) to lead a review of workers’ rights and practices, this case comes at a particularly relevant time and will be followed closely.
I do not normally recommend reading Employment Tribunal decisions as the most pleasurable way to spend a Friday evening, but on this occasion I commend it to you. Following a quick skim-read of the decision it has something for everyone: excellent arguments made by Mr Reade (for Uber) and Mr Linden (for the drivers, supported by the GMB union), a hard fought legal dispute, a David vs Goliath struggle and victory for the underdog, brilliantly summed up by the Tribunal Judge Mr Aslam in, at times, highly amusing terms, quoting Shakespeare – Hamlet’s mother no less. If nothing else, for anyone who intends to take a taxi within the next 12 months, I suspect it will be essential reading!
I will leave you with my favourite quote from the Employment Tribunal’s Decision in paragraph 87:
“We have been struck by the remarkable lengths to which Uber has gone in order to compel agreement with its (perhaps we should say its lawyers’) description of itself and with its analysis of the legal relationships between the two companies, the drivers and the passengers … Reflecting on the Respondents’ general case, and on the grimly loyal evidence of Ms Bertram in particular, we cannot help being reminded of Queen Gertrude’s most celebrated line:
“The lady doth protest too much, methinks“. Hamlet, Act III, sc2.
Employment law is brilliant. It is real, it is relevant, and it is alive and kicking.
Peter Tatchell once again demonstrates his fairness, generosity of spirit and commitment to freedom of expression:
Ashers Baking Company refused to make this cake
The law should not compel businesses to aid political messages
London & Belfast – 24 October 2016
The Appeal Court in Belfast has today ruled that a local Christian-run business, Ashers Bakery, was wrong to refuse to decorate a cake with a pro-gay marriage message.
“This verdict is a defeat for freedom of expression. As well as meaning that Ashers can be legally forced to aid the promotion of same-sex marriage, it also implies that gay bakers could be forced by law to decorate cakes with homophobic slogans,” said human rights campaigner Peter Tatchell, Director of the Peter Tatchell Foundation.
“It seems that businesses cannot now lawfully refuse a customer’s request to propagate a message, even if it is a sexist, xenophobic or anti-gay message and even if the business has a conscientious objection to it.
“Although I strongly disagree with Ashers opposition to marriage equality, in a free society neither they nor anyone else should be compelled to facilitate a political idea that they oppose.
“Ashers did not discriminate against the customer, Gareth Lee, because he was gay. They objected to the message he wanted on the cake: ‘Support gay marriage.’
“Discrimination against LGBT people is wrong and is rightly unlawful. But in a free society, people should be able to discriminate against ideas they disagree with. I am saddened that the court did not reach the same conclusion.
“The judgement opens a can of worms. It means that a Muslim printer could be obliged to publish cartoons of Mohammed and a Jewish printer could be required to publish a book that propagates Holocaust denial. It could also encourage far right extremists to demand that bakers and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions.
“What the court has decided sets a dangerous, authoritarian precedent that is open to serious abuse.
“Discrimination against people should be illegal but not discrimination against ideas and opinions,” said Mr Tatchell.
Read Peter Tatchell’s detailed reasoning as to why he changed his mind on the Ashers case (he initially supported the verdict against them) and why he opposes the new legal ruling:
Why I changed my mind on the Ashers gay cake row
The law should not require bakers to aid the gay marriage campaign
By Peter Tatchell
Like most gay and equality campaigners, I initially condemned the Christian-run Ashers Bakery in Belfast over its refusal to produce a cake with a pro-gay marriage slogan for a gay customer, Gareth Lee.
I supported his legal claim against Ashers and the subsequent verdict, which last year found the bakery guilty of discrimination. My reasons for supporting Gareth’s claim were:
1. Ashers had falsely advertised their services, saying they were willing decorate their cakes with any message that a customer wanted. They did not say there were any limits on the designs or wording.
2. I feared that Ashers actions could open the flood gates to allow sectarian loyalist-republican discrimination and discrimination against women, LGBTs and other minorities – and their points of view.
But I later changed my mind. Much as I wish to defend the LGBT community, I also want to defend freedom of conscience, expression and religion.
While Christian bed and breakfast owners and civil partnership registrars were clearly wrong to deny service to gay people, this case is different. It is about the refusal to facilitate an idea – namely, support for same-sex marriage.
I will continue to oppose the proposed “conscience clause” in Northern Ireland. It is intended to allow discrimination against LGBT people. I do not accept that people of faith should be permitted by law to deny service to LGBTs – or anyone else. Discrimination against people is never acceptable.
The whole saga began in 2014 when Ashers said they were not willing to ice a cake with the words “support gay marriage” and the logo of the equality group, Queer Space; claiming it was contrary to their Christian beliefs to promote homosexuality and gay marriage.
This struck many of us as discrimination based on religious-inspired homophobic prejudice. Ashers believe that the relationships of lesbian, gay, bisexual and transgender (LGBT) people are wrong and should not be eligible for the status of marriage. They translated these beliefs into action and declined to make the cake. Ashers would have decorated a cake with a message celebrating traditional heterosexual marriage and promoting a Christian organisation. Surely this was an example of clear-cut anti-gay discrimination?
Gareth Lee’s legal case against Ashers was backed by the Equality Commission of Northern Ireland. It argued that the bakery’s actions breached the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006 and The Fair Employment and Treatment (NI) Order 1998, which prohibit discrimination in the provision of goods, facilities and services on the respective grounds of sexual orientation and political opinion.
A Belfast court last May agreed and found Ashers guilty of discrimination on both grounds; ordering them to pay Gareth £500 compensation.
I profoundly disagree with Asher’s opposition to same-sex love and marriage, and support protests against them. They claim to be Christians and followers of Jesus. Yet he never once condemned homosexuality. Moreover, discrimination is not a Christian value. Ashers’ religious justifications are, to my mind, theologically unsound.
Nevertheless, on reflection, the court was wrong to penalise Ashers and I was wrong to endorse its decision.
For sure, the law suit against the bakery was well intended. It sought to challenge homophobia. But it was a step too far. It pains me to say this, as a long-time supporter of the struggle for LGBT equality in Northern Ireland, where same-sex marriage remains banned.
The equality laws are intended to protect people against discrimination. A business providing a public service has a legal duty to do so without discrimination based on race, gender, faith, sexuality and so on.
However, the court erred by ruling that Gareth was discriminated against because of his sexual orientation and political opinions.
His cake request was not refused because he was gay but because of the message he wanted on the cake. There is no evidence that his sexuality was the reason Ashers declined his order.
Despite this, Judge Isobel Brownlie said refusing the pro-gay marriage slogan was unlawful indirect sexual orientation discrimination because same-sex marriage is a union between persons of the same-sex and therefore refusing to provide a service in support of same-sex marriage was de facto sexual orientation discrimination.
I disagree. Refusing to facilitate a message in support of same-sex marriage is not sexuality discrimination. It is discrimination against an idea, not against a person.
On the question of political discrimination, the judge said Ashers had denied Gareth service based on his request for a message supporting same-sex marriage. She noted: “If the plaintiff had ordered a cake with the words ‘support marriage’ or ‘support heterosexual marriage’ I have no doubt that such a cake would have been provided.” Brownlie therefore concluded that by refusing to provide a cake with a pro-gay marriage wording Ashers had treated him less favourably, contrary to the law.
This may be a case of differential treatment. However, it was not discrimination against views held or expressed by Gareth but against words he wanted on a cake. Moreover, the law against political discrimination was meant to protect people with differing political views, not to force others to further political views to which they conscientiously object.
The finding of political discrimination against Gareth sets a worrying precedent. Northern Ireland’s laws against discrimination on the grounds of political opinion were framed in the context of decades of conflict. They were designed to heal the sectarian divide by preventing the denial of jobs, housing and services to people because of their politics. There was never an intention that this law should compel people to promote political ideas, such as same-sex marriage, with which they disagreed – let alone on a cake.
The judge concluded that service providers are required by law to facilitate any “lawful” message, even if they have a conscientious objection to it.
This begs the question: Will gay bakers have to accept orders for cakes with homophobic slurs? I don’t think LGBT people should be forced to promote anti-gay messages.
The court judgement also leads me to ask: Should a Muslim printer be obliged to publish cartoons of Mohammed or a Jewish one a book that propagates Holocaust denial?
If the current Ashers verdict stands it could, for example, encourage far right extremists to demand that bakeries and other service providers facilitate the promotion of anti-immigrant and anti-Muslim opinions. It would leave businesses unable to refuse to decorate cakes, print posters and emblazon mugs with bigoted messages.
In my view, it is an infringement of freedom to require private businesses to aid the promotion of ideas to which they conscientiously object. Discrimination against people should be unlawful but not discrimination against ideas and opinions.
By Elizabeth Butterworth (this article also appears in Solidarity and the Workers Liberty website)
Last week, the footballer Ched Evans was cleared of rape after appealing against his 2012 conviction. This does not mean that he did not rape victim X, or has “proved his innocence”, but that the jury had “reasonable doubt” about whether he had raped X or if she had consented to sex.
Reports of the trial’s proceedings suggest that the events were as such: X was engaged in sexual activity with Clayton McDonald, another professional footballer, who was acquitted of rape in the original trial. Evans then proceeded to have sex with X without having spoken to her, while Evans’s younger brother looked on from a window.
X has testified that she cannot remember any of these events due to being too drunk. Evans’s lawyers claimed that she had “directed” events by saying things like “fuck me harder”. The evidence in this re-trial apparently hinged on the testimony of two men who had had sex with the victim on other occasions, and attested that she had said similar things to them as what Evans had claimed in the original trial.
It is difficult to “prove” rape, in terms of being able to show a jury that the victim was not consenting and the defendant was aware that (s)he could not or did not consent, which is what this case rested upon. However, it is difficult to see why the Court of Appeal deemed that this evidence was compelling enough for a re-trial.
It is worrying that the victim’s sexual history was brought into the trial. The implication is obvious: that, because she’d had casual sex or drunken sex on other occasions and said things that suggested she liked having sex, it was simply a case of her having done that again. Which raises the question, do women need to police themselves to the point of not being able to have casual sex or not being able to drink, in order for men not to rape us? To which the answer is, no, men should know to leave drunk women alone and that each time someone has sex, consent must be sought first.
What I’ve read about the Ched Evans case from the perspective of criminal lawyers does not suggest wide legal implications in terms of setting new precedent. This trial, and other rape trials where there is some level of “victim blaming”, do set a cultural tone, however. In the Daily Star, their columnist Helen Wood rants, “These silly bitches who need a good slap of reality should stop and think…
“We’re all meant to get our violins out because they’ve had to change their names five times, if she’s stuck on a new name for in future, C*** would be a good one…. Hope this case has set a lesson for all the ladies out there trying to scar people for a dollar, if you drop your kecks, deal with the walk of shame, quit trying to frame.”
X has had to change her name five times and is, according to some sources, considering moving abroad due to the harassment and abuse she has suffered both on and off-line. The abuse, like Wood’s disgusting tirade (which, let’s not forget, was published by a newspaper with about 430,000 readers), centres around X being labelled a slut, a bitch, money-hungry and a liar: all classic misogynist tropes.
The simple fact is that pretty much every woman I know has been a victim of sexual assault or rape. And has been sexually harassed countless times.
I’ve reported being assaulted to the police and had to deal with total incompetence, inertia and non-existence of resources. I went to the police after a friend was assaulted with a knife and, after hours of painful interviews, the assailant was slapped with a fifty quid fine and no criminal record. I’ve been raped, twice, by two different boyfriends. I’ve also walked down the street and been grabbed. When I shrank away and asked them to leave me alone, I was followed and called a bitch and a cunt. I’ve changed my mind and not gone through with sex, at which point the man I was seeing got extremely aggressive and I had to literally run away.
In fact, any time I have challenged men — even “nice men” — over their behaviour, they become aggressive and sometimes violent. They believe they are entitled to make lecherous comments, to look up women’s skirts, to stare down our tops and to intimidate us. And despite having had relationships with both men and women, and having been dancing in many gay clubs as well as straight, I’ve only once felt that a woman was going “too far”. The hundreds of other times have all been men.
We have a huge problem of misogyny in society. I mean actual women-hating, not just sexism. What else is it when you don’t think someone has a right to ownership over their own body and what happens to it? This is perpetrated by lots of men, who seek to show their dominance, and exert power.
And it is backed up by the internal misogyny of women like Helen Wood, who try to differentiate their womanhood from that of the “silly bitches”.
Rape is on the books as a crime. And the word and idea of “rape” is sensationalised. Yet, the reality of women’s lives is that rape is pretty “normal” and common. And due to the inertia of the police, the brutality of the courts system and the cultural bias of juries, many of us don’t see the point of reporting, let alone pursuing the case and taking rapists to court.
The victim in the Ched Evans case is my hero for reporting and taking the case to court. In the end, Evans may have been cleared, but at least this has drawn attention to the very real problems we face as a society.
Until the women are free, the people cannot be free. Until men realise that women need to be empowered at every level, we will not be successful as a movement or as a class.
Photo: Toby Melville/Reuters
Illustration: Steve Bell (Guardian)
