Comment: Seeking the higher ground

Most of us start out believing that the law is always right, that integrity and wisdom pervade the justice system and that official and law firm data sources are always accurate. Even when we realise otherwise, we simply take exceptions to prove the rule. Yet data is like an incoming tsunami and if you don’t take shelter you are sure to get either very wet or drown.

We at FedEE work hard to encourage legal compliance. It is our mission to keep employers out of court. However, it is also increasingly difficult to filter all the misinformation that is being published by governments, the media and law firms, together with the task of pointing out overlooked case law and bad legal decisions.

We recently sought interpretations from different law firms about the legality of “garden leave” in Italy. Some contended that there was simply no such concept in the country, whilst others declared it was illegal. The conclusion we reached was that because of the system of electronic registration to the authorities when termination took place, any leave taken during a notice period would simply extend the notice period. This means that as “garden leave” would be taken literally as a form of “leave” by “concrete thinking” officials, it would therefore indefinitely extend departure. That is a very different answer.

The Employment Appeal Tribunal (EAT) in the UK sometimes comes up with bizarre rulings, such as a recent case about holiday rights for term-time workers that gave them almost the same time off as full-time workers. As we illustrated in a previous issue, another of their rulings has just been overturned by the Court of Appeal because no one on the bench had bothered to read the minimum wage regulations before pronouncing judgement. Sometimes a law firm simply does not know the law (see Clifford Chance below) or the error involves a law firm badly interpreting a judgement, as in the recent case reported by Herrington Carmichael. According to the lawyers (writing in Lexology), the EAT made a decision about a disabled worker being given a warning for repeated absence. However, the case was really about their dismissal and the EAT contention that the employee should have been offered a part-time contract in order to adjust to their situation (Dr J Ali v. Drs Torrosian – see below).

We no longer take as a dependable source any literature written by, or for, the European Commission as it is frequently so packed with errors – like the blanket description on the Commission’s website of posted workers as a group who could continue practicing in another country with their qualifications achieved in their home country (that would be good news for lawyers and accountants, if it were only true). There is also the latest national report on non-discrimination written by two prominent UK law professors for the European Commission who notify the reader that “race” is not a protected category in the UK, except Northern Ireland. Clearly they have not read the Equality Act 2010, its Code of Practice – or mountains of case law – let alone the EU Directive specifically about race equality protection (2000/43/EC).

We regularly also delay reporting a European Court of Justice case because the opinion given to the court by the Advocate General is so often clearly at variance with established precedents or legal principles. Also, in the UK the government’s employment advisory service ACAS currently advises that employers have no legal obligation to provide a reference; whilst, in fact, two accepted court precedents spell out that they do.

It is not only legal data that is so often wrong, but government statistics are often so badly massaged for political purposes that the statisticians leave the evidence of their distortion intact in associated figures (see Turkish story below). Some while ago we reported that the first true case of sectoral equal pay in the world had been achieved in the Irish wood-products sector. When questioned, however, the Irish Statistical Agency admitted they had got it all wrong. They were very annoyed – not with themselves, but with us for pointing out their failures.

There is also a great deal of free data about pay currently on the Internet. The pity is that little of it is accurate. Organisations like Total Jobs put together data from jobs that are advertised and derive pay data from this distorted sample of what people are being offered to fill a vacancy, rather than what people are actually paid in jobs, whilst most others, such as Glass Door and PayScale, invite anyone on the Internet to submit their own pay data and derive their statistics from that. In one occupation we saw an average based on a sample of just two. Even seemingly respectable surveys from management consultants draw together data largely from companies that do not know what to pay. Hence their data reveals pay levels from companies that share one thing – ignorance of the true pay market.

In recent years the Internet has become crammed with legal data from numerous sources, especially law firms and law firm networks. So much so that we at FedEE have found it increasingly difficult to show the quality we work so hard to achieve. Most legal sources, however dressed up in glossy formats, are significantly out of date. Updating is usually done periodically – often every 1 or 2 years. By contrast we go online daily to make changes (even at weekends) and still find it is difficult to keep pace. Thus, we know that most employers are misled to think that either they can get good enough data free off the internet, or can trust certain data or advice because it comes from a law firm charging them big bucks for the privilege. Such misplaced trust is like running for cover to flimsy shelters or buildings that look robust, but just make drowning all the more dignified.

Back in the early 1990s our first US and Japanese members said largely the same thing. They needed us to check out the advice they were receiving from Europe. Today that need has only intensified. Our filtering system is more important than ever. So too is our constant concern about the bigger picture and developments that would have a major impact if they became established as a trend.

At the very least we can point out the still-distant tsunami and the nearest high ground – avoiding it altogether is quite a different matter.

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