Jimmy Savile, the Enterprise and Regulatory Rights Bill, and ‘consultation’…

Partner and employment law specialist Paul Statham considers the rights of whistle-blowers in the light of the Jimmy Savile furore, and questions the Government’s commitment to the whole concept of ‘consultation’…

Every day brings new and escalating allegations in the media about the abusive conduct of Jimmy Savile, who appears to have sexually harassed work colleagues, patients and residents of hospitals and care homes where he volunteered, and members of the public with whom he came in contact during the course of his employment with the BBC.

His predatory activities with young girls and patients at hospitals and care homes appear to have been reported by the victim, or witnessed on many occasions. But the common reaction seems to have been that no one would believe the story because of who he was. In particular his work for charity seems to have made him ‘too big to fall’, despite all the rumours.

It is therefore with a keen sense of irony that the Government has announced that it intends to pass legislation that will make it even easier to escape detection in the future. Firstly, in clause 15 of the Enterprise and Regulatory Rights Bill, whistle-blowers will be required to satisfy a ‘public interest’ test if they are to receive employment protection from detriment and/or dismissal.

Ostensibly this is to reverse the effects of a previous court decision in a case called Parkins v Sodexho that watered down the public interest purpose of the Public Interest Disclosure Act (PIDA). In this case, the Employment Appeal Tribunal found that an individual raising a concern about their personal employment contract could be covered by the breach of a legal obligation provision under PIDA. The Government’s solution puts the onus on the whistle-blower to decide if a disclosure is ‘in the public interest’, which may be very hard to determine. There was no consultation on this provision before it was introduced and many organisations, in particular Public Concern at Work[1], have suggested this amendment is a retrograde step that will inhibit whistle-blowing in respect of wrongdoing at the workplace.

Imagine if you were a nurse at Stoke Mandeville or Broadmoor and you witnessed your major fundraiser in a patient’s room when there might be an innocent explanation (as it appears Jimmy Savile had access to all areas of the hospitals). Do you risk your employment by reporting your suspicions, or do you keep your head down?

Most commentators agree that the decision in Parkins v Sodexho was wrong, and should be reversed to prevent abuse of whistle-blowing legislation in, for example, bankers’ bonus cases. Or where an employee doesn’t have the requisite continuous service. However, there is a far simpler solution: to exclude from the protection of PIDA claims in respect of the employee’s own contract of employment.

Secondly, at the Report stage of the Bill, the Government introduced draft amendment 5 that removes provisions in the Equality Act 2010[2] that make an employer liable for harassment of an employee by a third party such as a client or volunteer. Except where the employer knows that the employee has been subjected to such conduct on two prior occasions and has not taken reasonable steps to prevent that employee from being subject to such conduct again.

On this occasion the Government did at least go through the motions of consulting interested parties, but did not even have the courtesy of waiting for the response to be published before tabling the amendments to the bill.  The amendments were tabled on the 9^th October, but the response was only published by the Government Equalities Office[3] on the 11^th.

Further, the attitude of the Government appears to be that only certain respondents deserve attention. The executive summary[4] states:

“Of the 80 responses to this consultation, 16 (20%) agreed our proposal for repeal and 57 (71%) opposed it. Responses which agreed with the proposals came mostly from individual public, private and not-for-profit sector employers and business organisations, although two individuals responded on their own behalf.

All business representative organisations supported repeal. Responses which disagreed with our proposal were mainly on behalf of public sector employers, unions and equality lobby groups…”

So you apparently have to be a private sector employer in order for your response to carry any weight. Public sector employers whose employees are dealing with members of the public day in, day out who are angry and frustrated when faced with the effects of cuts in public services, and who would be expected to have more problems in coping with the legislation, appear not count. Nor, it seems, do trade unions, experienced lawyers or equality organisations.

Since the legislation has only been in force since 2010 and requires conduct on two prior occasions to trigger a claim, it is not surprising that there was little ‘direct experience of the legislation’ evidence available. This lack of evidence is being taken as a reason to repeal.

The Government also ignores suggestions from various organisations that to repeal the provisions may be incompatible with the Equal Treatment Directive[5].

I consider that the Government’s response to this consultation is dishonest in the extreme. I also discern a pattern emerging where consultation exercises become no more than box-ticking exercises where the policy is decided at the start of the process and nothing is going to change their views. It calls into question the reason for consulting in the first place, or for responding.

I do wonder why I and other members of my firm take considerable time to respond to the tsunami of government consultations on changes to employment law that have been issued in the last year. Unless it’s for the satisfaction of pointing to our responses and saying ‘I told you so’ when legislation has calamitous and unintended consequences. In the response on tribunal fees, they couldn’t even get the name of the firm right in the list of respondents[6], which hardly suggests that they read our responses very carefully!

The thinness of evidence, and assumptions made in impact assessments and equality impact assessments, has recently been commented upon by Michael Rubenstein in his ‘Diary’ in the Equal Opportunities Review[7].

In reviewing the Fees response – in answer to the Government assumption that fee remission will ‘mitigate the indirect discriminatory effect of fees on BME groups, women, younger people and the disabled’ – he states:

“This is arguably specious because it takes account of only one side of the equation. BME groups, women and disabled people are also more likely than white, male and non-disabled people to bring discrimination claims. Therefore, before determining that there is no indirect discrimination, we would have to compare those who were deterred from making a claim with those who were not deterred because their fees would be remitted.”

Other recent developments that cause me concern include ‘Calls for Evidence’ such as the recent BIS documents on the TUPE regulations[8]. In effect this is a call for anecdotes, as few organisations have access to the relevant statistics or responses to significant surveys that provide objective evidence.

Even more sinister are the developments where you ‘give your mate’ access to civil servants to write a report full of anecdotal and personal perceptions on what is wrong with employment law. As if a discussion in the bar of the golf club is as important to policy-making as the reasoned response of the Employment Lawyers Association or Law Society Employment Law Committee (both of which prepare detailed and balanced responses to all relevant consultations).

The notorious Beecroft report[9], for example, was only published in May because a draft had been leaked, allegedly with annotations from 10 Downing Street. It’s a remarkable document, brimming with assertions supported not by evidence, but by anecdotes and gut feelings. Helen Lewis in the New Statesman[10] noted that in its 16 pages ‘the words I or my appear 20 times, while the words research or studies don’t feature at all”.

Its main call was for compensated no-fault dismissal. The minister, Vince Cable, rejected this after a call for evidence. However it has now arrived with the Chancellor’s announcement of employee owners.

There was a government code of practice on consultation that dates from July 2008[11]. This sets out seven criteria, including that ‘consultation exercises should normally last for at least 12 weeks and that consultation results should be analysed carefully and clear feedback should be provided to participants following the consultation.’

The Government announced on the 17^th July that it was seeking views on a change in the guidelines on consultation. In particular that there would no longer be a default 12-week period, and that the type and scale of engagement should be proportional to the potential impact of the proposal.  Oliver Letwin, in a written statement, said that the Government was committed to improving policy making ‘with a greater focus on robust evidence, transparency and engaging with key groups earlier in the process.’  However, although it said it was seeking views, the Cabinet Office Press statement[12] said that the new principles will be promoted within Whitehall and the new guidance would take effect in the autumn.

Soon afterwards, BIS published changes to Impact Assessment and regulatory Policy Committee Scrutiny.[13]  This makes it clear that ‘red tape challenge’ and other deregulatory measures may use a fast-track process that does not involve preparing a full impact assessment with an analysis of alternatives to the proposed change in regulation.

The first fruits of this can be found in the consultation announced this week to introduce employee owners[14].  Responses have to be received by the 8^th November, a period of only 3 weeks. Additionally if you reply online, you can use software supplied by Surveymonkey.  For a change in policy that may have fundamental implications for workers rights as well as company and tax law, this does not strike me as the best way to have meaningful consultation.  However as the Government has decided to go ahead whatever the consequences, consultation is unlikely to make a difference in any event. I find these developments for policy-making very disturbing.

Postscript

With further irony, as I was writing this article Jo Swinson, the minister responsible for steering the Bill through Parliament, was speaking in the House about amendments to the Bill[15]:

“Some – including the Employment Lawyers Association … told us that the original wording of subsection (1) – which stated that employment tribunals should not take account of offers of settlement in their deliberations – could be open to misconception and misunderstanding.  Although government believe that the original drafting would have the desired effect … we wish to allay those fears and are amending the drafting of subsection (1)…”