7 minute read
Partygate, Seafarers and the co-efficient of the expansion of Brass
from ACANews June 2022
by brianwaters1
ACA excellence in practice
Max Winthrop wonders about the wisdom of having office parties
Max D Winthrop, partner, Short Richardson and Forth Solicitors
Apparently minor details, in law as in other fields of human endeavour, can in the right circumstances have quite extraordinary ramifications. The law of negligence derives its founding principles the consequence of what may have been in a bottle of lemonade, offered as a thirst quencher at the Minchella Café in Paisley one sunny summer in the 1930s. Alfred Arthur Rouse suffered the ultimate penalty because his defence to murder - based on expert evidence - collapsed when his engineer did not know the answer to on question: what is the co-efficient of the expansion of brass? And a couple of years back the Supreme Courts of both the USA and the UK grappled with questions of free and coercive speech where the contested subject matter was what bakers were prepared to bake for their customers, and how the cakes were to be decorated.
Only a few years ago the idea that a workplace party and the presentation of a birthday cake could provoke a constitutional crisis would have seemed laughable. But as I write this, while war of a type few would have dreamed would return to Europe rages, the seemingly trivial has the potential to undermine not just governments but a fundamental constitutional convention that Parliament should not be misled. I am not a constitutional lawyer, however, and so the detailed analysis of the Partygate crisis I leave to others. However: it does have one resonance, albeit at lower level, for employment lawyers: how can conduct outside the workplace and the working day form the basis of a potentially fair dismissal?
Before lockdown put paid to office parties, January and February used to be a time when employment lawyers would be awash with enquiries where the factual matrix concerned office party had proved a little too in terms of temptation for particular employees (or even, dare I say it, the bosses). Like so much in employment law context is all: even criminal behaviour may not be sufficient to instigate disciplinary sanctions, a principle set out clearly in ACAS’s Code of Practice. What is important, in deciding whether any particular activity is sufficient to justify a disciplinary sanction, is the employee’s suitability to continue to do the job in the light of the allegations, and the effect that the allegations may have on work colleagues and customers.
Thus, in the case of Pay v Lancashire Probation Service the employee was a very well regarded and long serving Probation Officer. He did, however, have a side-line: he performed in fetish clubs and ran a mail order company that supplied bondage and sado-masochistic “equipment.” Notwithstanding arguments based on the right to a private life, or that none of his activities took place in working hours the dismissal was held to be fair: the potential damage to the employer’s reputation justified dismissal.
Just before Partygate dominated the headlines there was one other story that took precedence for a time over the war in Ukraine: the mass sacking at P & O Ferries. For a maritime nation, the rights of those that work in our merchant fleet rarely excites much attention. Indeed, as foreign flagging has increased since the middle of last century it is perhaps a little misleading to talk of “our” merchant fleet. Whilst the method of communicating mass redundancies seems to have generated much of the criticism – I think because it was pre-recorded – the whole sorry saga has illuminated just how technical the law of collective redundancies has become, and how many traps await the unwary, whether employer or employee.
Of course, unless any ACA members run their practices from a floating HQs in international waters, they are unlikely to be faced with some of the technicalities assiduously ignored, so it would seem, by P & O ‘s management. And what a lot of technicalities there are. Whilst much media interest concerned that pre-recorded Zoom call, employment lawyers have been asking questions such as how many seafarers were there on each ferry? Where were the ferries going – between ports in the United Kingdom or between the United Kingdom and ports in other jurisdictions? How long had the crew been employed? In which state were the crew domiciled? The answer to these questions can make all the difference between a nailed-on claim or a complete defence.
Part of the problem is the way we legislate. Rationally you might expect there to be one statute that has the answers to all the questions posed above, but there is not. Individual questions of fairness are covered by the Employment Rights
Act 1996, but collective issues are covered by a different statute – the Trade Union and Labour Relations (Consolidation) Act 1992. It is the latter Act that would apply if employers decide that they need to make more than twenty employees redundant in one go.
British seafarers, generally speaking, will have slightly different rights to land based British workers even if UK domiciled, when it comes to some fundamental aspects of their employment rights. Then there is the question of the National Minimum Wage Act: why can P & O ditch its UK crew and replace them with foreign nationals on less than UK NMW rates? Because, at least for now, the NMW does not apply to non-UK domiciled workers who may be based at a UK port, but whose role involves sailing out of the UK to a port beyond the jurisdiction - such as Calais. In 2020 the National Minimum Wage (Offshore Employment) (Amendment) Order 2020 amended the National Minimum Wage (Offshore Employment) Order 1999 (SI/1128) with effect from 1 October 2020 – but these changes only extended the right to the minimum wage to all seafarers and employed fishers working in the UK territorial waters, regardless of where they ordinarily work or where a ship is registered. So why no national minimum wage for foreign ferry crews on the Dover to Calais run? Because there is an exception: workers on ships exercising “innocent passage” or the right of “transit passage” – terminology derived from a UN Convention on the Law of the Sea - are not covered even by the amended legislation unless the worker is domiciled the in the UK.
The attentive reader might now raise a question: isn’t “nationality” part of “race” as a protected characteristic under the Equality Act 2010? Well – yes it is: by section 9 of the Act “race” includes nationality and national origins. So would not treating a foreign national less favourably than a UK worker amount to discrimination? Normally – yes. But when it comes to seafarers we have to look at another statutory instrument with an over long title: the Equality Act 2010 (Work on Ships and Hovercraft) Regulations 2011. Regulations 5 disapplies nationality as a protected characteristic when it comes to differences in pay for seafarers – which is why P & O may, for now, once workers have been sacked on certain routes, be able to recruit cheaper foreign labour. With adverse publicity generated by the exercise, the potential for claims for unfair dismissal, for the failure to consult collectively (worth up to 90 days’ pay for each affected employee) and the penalties for failing to file a form informing the Secretary of State of proposed redundancies it is not surprising that many will be question even the economics of P & O’s decision, even without criticizing its ethics.
If there is a takeaway from the P & O saga it is that redundancy exercises involving more than twenty employees are fraught with dangers for the unwary – get advice if you are ever in the unfortunate position of contemplating redundancies on this scale. As for Downing Street, one feature that differs here form the usual scenario that I am often asked to advise on is that the police and the criminal process have preempted the ongoing investigation into the behaviour of the staff. If we are looking at criminal actions by an employee, employers are often faced with having to decide whether to run their own inquiry or wait a prosecution. The problem with that is that usually the criminal process is very slow. Particularly if an employer decides to let the criminal courts do the decision making (although not something I would normally advise) what do you do with the employee in the meantime? If the employer is happy to suspend the employee on full pay, there will not be a problem. As regards Partygate we already have convictions - or at least fixed penalty notices – but the Sue Gray report is still awaited as I write. All in all, I do often wonder about the wisdom of even having office parties. n
