The first rule of defending yourself against an allegation is to decide on your story and stick to it. The second rule is not to confuse matters by introducing another line of defence that, in effect, undermines your story.
Damian Green’s friends on the Tory benches have been repeating his flat denial of having used his Commons computer to access pornography. But then they go on to add that the porn was “legal”, which rather begs the question, why does that matter if he wasn’t looking at it in the first place?
The likes of Andrew “Plebgate” Mitchell, Ian Duncan Smith and David Davis have all expressed outrage at the allegations raised by former Met cops Bob Quick and Neil Lewis. Davis, a close associate and former boss of Green, has threatened to resign if his friend is forced out, thus making Green virtually unsackable and effectively tying May’s hands. What will happen if further allegations about Green’s personal conduct (making unwelcome advances towards Conservative activist Kate Maltby) are upheld by Sue Gray’s inquiry, will be fascinating to observe. But the smart money must be on Green surviving – the political price of sacking him and then losing Brexit negotiator Davis would simply be too high for May to contemplate: it could even bring down the government.
Quick and Lewis have stated that during a 2008 investigation into the theft (masterminded by Green and David Davis) of documents from the Labour Home Office, they found thousands of pornographic images on Green’s Commons computer, and also on his laptop. Lewis, who specialised in examining digital devices, said “the computer was in Mr Green’s office, on his desk, logged in, it is his account, his name, in between browsing pornography he was sending emails from his account, his personal account, reading documents, writing documents and it was just impossible, it was sort of exclusive and extensive, that it was ridiculous to suggest that anybody else could have done it.”
Green’s friends (and idiots like this) bleat on about his right to be considered innocent until/unless proven guilty, and suggest that only a court of law can properly decide the matter. Such people are either ignorant or being deliberately disingenuous: this is not a criminal matter, but a workplace matter, which civil law principles apply: ie there is no presumption of innocence and guilt does not have to be proven “beyond reasonable doubt” but on “balance probabilities.” Last I heard, the House of Commons was supposed to be a workplace; in any other workplace an employee found (on “balance of probabilities”) to have accessed any sort of porn on a work computer, would be looking at summary dismissal. And the source of the evidence would be irrelevant, so long it stood up … on “balance of probabilities.”
Let’s be clear from the outset: the death of Carl Sargeant was a tragedy and no-one should be using it to score points or make political capital.
That’s why I’ve hesitated before writing anything on the subject, and I certainly have no intention of seeking to pre-empt the findings of either the coroner or the independent inquiry ordered by Welsh first minister Carwyn Jones.
The anguish of Carl Sargeant’s family and close personal friends is entirely understandable: but that doesn’t mean we have to simply go along with what they say.
Less still do we have to go along with those who are not family or friends of Carl Sargeant, but simply people who think the whole issue of sexual harassment in politics has ‘gone too far’, and have seized upon this tragedy as – supposedly – evidence that the whole sexual harassment business is now ‘out of hand’, etc, etc, with wrongly accused men as the main victims.
From the outset of the sexual harassment in politics scandal, we were assured by Charles Moore in the Telegraph, that women were now on top and the worry is whether they will share power with men or just “crush us”. Peter Hitchens, in the Mail On Sunday, warned that the “squawking women” would end up in niqabs if they carried on. Meanwhile, David ‘Mr Somewhere’ Goodhart tweeted that it was only the women of the metropolitan elite who were bothered about sexual harassment.
As news of the Carl Sargeant suicide broke, the Daily Mail’s front page claimed he’d been “THROWN TO THE WOLVES” and denied natural justice by Carwyn Jones and the Labour party.
But what, exactly, is Carwyn Jones supposed to have done wrong? As far as I can judge, he did indeed do things (as he has said), “by the book”. Carl Sargeant was, apparently, made aware of the general nature of the allegations, but not (at the early stage of the investigation) given precise details or the names of his accusers: he would, as I understand it, have received this information in due course and then been given every opportunity to defend himself. In the meanwhile, he was dismissed from his ministerial post and suspended from the Labour party. Carl Sargeant’s family were not satisfied, which is understandable; opportunistic calls for Jones’s resignation, eminating from the Tories, sections of the press, some in Plaid and even some Labour people, are not.
It may be that the coroner and/or the independent inquiry will point to shortcomings in the way the case against Carl Sargeant was handled, and it may be that more support should be offered to all those mixed up in allegations of this sort – especially when peoples’ mental health is at risk. But it would be outrageous for anyone to seek to use this tragedy to downplay the seriousness of sexual harassment, or to deny its prevalence in politics and public life.
Barrister and employment law specialist Daniel Barnett reports:
The Employment Appeal Tribunal has just handed down its decision in the Uber decision, upholding the employment tribunal’s ruling that Uber drivers are ‘workers’ and thus qualify for workers’ rights.
Most readers will be aware that yesterday an employment tribunal ruled that Addison Lee drivers are workers, not self-employed. The judgment is here.
Meanwhile, Uber’s appeal against the decision that its drivers are workers begins tomorrow in the Employment Appeal Tribunal. Yesterday’s news makes this paragraph in Uber’s skeleton argument somewhat unfortunate:
[Thanks to Leigh Day and Rachel Farr for the above information]
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
Photo: Toby Melville/Reuters
Illustration: Steve Bell (Guardian)