The white and blue (collar) divide of worker status recognition

Amir Paz-Fuchs
Amir Paz-Fuchs

In late May 2014, the Supreme Court delivered a ruling that should be a welcome development for those seeking the expansion of employment status and to those who have protection for whistleblowers close to their hearts. And yet, it can be argued (and will be, in what follows) that the ruling sheds light on a troubling discrepancy between the approach that courts take in cases involving white collar workers, and those involving blue collar workers.

First, the facts: the case involved a qualified solicitor, Krista Bates van Winkelhof [‘the appellant’], an equity partner in a law firm, Clyde & Co LLP [‘the LLP’]. In November 2010 the appellant became aware that the managing partner in a Tanzanian law firm which was involved in a joint venture with the LLP, was paying bribes to secure work and the outcome of cases. She reported these facts to the money laundering officers of the LLP. In response, she was suspended, was subject to allegations of misconduct and, in January 2011, ultimately dismissed. The appellant claimed protection under the whistleblowing provisions of the Employment Rights Act 1996. The central issue, however, is that such protection is awarded only to a ‘worker’ within the meaning of section 230(3) of the Act. This section is composed of two ‘limbs’. The first, limb (a), covers an individual who works ‘under the contract of employment’, and is thus ‘an employee’. It was not suggested that the appellant was an employee. The question was whether the appellant falls under limb (b), which covers an individual who works under

“any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual.”

The employment tribunals and courts delivered a see-saw of decisions.

The rulings: In the first instance, the Employment Tribunal found that the appellant was not a worker, as she worked “in business in her own right receiving a share of the profits in relation to the work carried out”. The Employment Appeal Tribunal allowed her appeal, focusing on the fact that the appellant could not offer her services to anyone else, that she was in a subordinate position, and the LLP was not her client. The Court of Appeal reversed again. While Elias LJ acknowledged that that “there is a powerful case for saying that, focusing solely on the language of section 230, the terms of the statutory definition of worker were satisfied in this case” and that that the LLP “could in no sensible way be said to be either the client or a customer of the claimant” (thus accepting the analysis of the Employment Appeal Tribunal), he found that the appellant could not be viewed as a ‘worker’, because an LLP could not be described as an employer of its members. Or, from the reverse perspective, Elias LJ states that “underlying the statutory definition of ‘worker’ is the notion that one party has to be in a subordinate relationship to the other”. In addition, the CA found that section 230(3) was impliedly modified by section 4(4) of the Limited Liability Partnerships Act 2000. This provides:

“A member of a limited liability partnership shall not be regarded for any purpose as employed by the limited liability partnership unless, if he and the other members were partners in a partnership, he would be regarded for that purpose as employed by the partnership.”

So now the question became whether the restriction embedded in section 4(4) covers both limb (a) and limb (b) of section 230(3) of the ERA. If so, as the LLP argued, a partner cannot be an employee nor a worker. If a more restrictive interpretation is accepted, then section 4(4) will apply only to employees, but not to workers. The CA favoured the wider interpretation, thus concluding that those who would enjoy worker protection under the tests developed for section 230(3), would be denied such status as a result of section 4(4).

The Supreme Court disagreed.

It is important for the argument that follows to make note of Lady Hale’s statement, opening the substantive discussion. Taking a birds-eye view of the proceedings, she states (para 16):

The immediately striking thing about this case is how much hard work has to be done in order to find that a member of an LLP is not a worker within the meaning of section 230(3)(b) of the 1996 Act. It is common ground that the appellant worked “under a contract personally to perform any work or services”. It is now common ground that she provided those services “for” the LLP. It is also now common ground that the LLP was not her “client or customer”. The Court of Appeal … accepted that there was a “powerful case” that the definition was satisfied. How then can it be said that she was not a “worker” for this purpose?

Lady Hale states, first, that the ‘natural and ordinary meaning’ of ‘employed by’ is employed by a contract of service, and thus should not apply to a wider range of contracts. Second, the law now recognised a range of employment status, from ‘employee’ through ‘worker’ and on to self-employed individuals who provide services as part of a service to others, but are still protected under health and safety laws or the Equality Act 2010, for example. Therefore, if Parliament would have wished to include workers in the meaning of section 4(4), it could have done so explicitly. Thirdly, the Limited Liability Partnership is a new corporate structure, the parameters of which are yet to be determined. It is not obviously clear whether partners in such a structure may be workers (in the wider sense) of the partnership. If Parliament wished to limit the possibility, again, it could have done so.

Lady Hale also rejected the Court of Appeal’s observation that subordination is a necessary ingredient in the employment relationship. Subordination would be observable for those employed under a contract of employment. However, for workers and those under a contract “personally to do work” (Equality Act 2010, s 83(2)), subordination is ‘not a freestanding and universal characteristic’ (para 39).

Discussion: over the past decade, Professor Mark Freedland has advanced (more recently, with Nicola Kountouris) a ‘radical approach’ to expand statutory protection by detaching employment rights from the traditional dichotomy of employee/self-employed, and provided a new organising idea of personal work relationship to replace the old categories. This

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flexible, purposive approach would take into account dignity, fairness, personal development and economic performance in the regulation of the personal work relationship.

It may be that if this approach suffered a setback in the 2011 case of Jivraj v Hashwani (at least according to Chris McCrudden, but see the reply by Freedland and Kountouris), it has regained force in the current case. While still operating within the parameters of the traditional categories, the Supreme Court’s common sense approach, on clear display in section 16 of its judgment (quoted above), suggests that such categories may be transformed from strict boundaries to signposts, en route to decisions that take into account the employment context, power relations, distributional and efficiency considerations. Expanding worker status in this case, it should be made clear, has implications not only for whistleblowing protection, but also for the application of the National Minimum Wage Act (probably only of theoretical relevance in this case), Working Time Regulations 1998 and Part-time Workers (Prevention of Less Favourable Treatment) Regulations2000, to give but a few examples. It may also pave the way for the expansion of employment status in other cases.

And yet, the juxtaposition of this case against a series of cases where worker status was routinely denied to agency workers employed as cleaners, social service workers, prison maintenance workers, for example, raises the concern that courts are more willing to expand protection to ‘white collar’ workers, all the while being far more judicious and legalistic where ‘blue collar’ workers are concerned. This critique is made less casuistic, and more structural, when analysing the Court’s comments concerning the (ir)relevance of subordination as an essential element in the analysis of worker status. In fact, one may say that if subordination

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(whether administrative or economic – see here and here) was viewed as a necessary and sufficient ingredient for the assertion of worker status, the Court’s reasoning seems to reject not only the former, but also the latter. The implications are significant: minimising the importance of subordination as a necessary element would, as it did in the present case, allow employment protection to expand to independent, professional and expert individuals employed under a wide range of contracts. However, dismissing the relevance of subordination as a sufficient element would narrow (or, at least, bar the effort to further expand) protection currently denied to agency workers, regular casuals, zero-hour workers and others. This would be regrettable, for it is those workers whose subordination is most apparent, and who are most in need of protection.

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SAS v France: Does Anything Remain of the Right to Manifest Religion?

Stephanie Berry
Stephanie Berry

The following is cross posted with permission and thanks from EJIL: Talk

 

The finding by the European Court of Human Rights (ECtHR) in SAS v France that the so-called ‘French burqa ban’ did not violate the European Convention on Human Rights (ECHR) will not surprise many in the field of human rights. However, the judgment itself contains a number of developments and departures from the Court’s previous jurisprudence that warrant further consideration. In particular, the conclusion that the right to manifest religion may be restricted on the ground of ‘living together’ presents a worrying development, if this right is to have any practical meaning. (photo credit)

In SAS v France, the applicant challenged the French Loi no 2010–1192 interdisant la dissimulation du visage dans l’espace public of 11 October 2010, JO 12 October 2010 (herein after the ‘burqaban’), which prohibits the covering of the face in public. The case differs from previous cases concerning the right of Muslim women to manifest religion by wearing religious attire, as the law imposed a blanket ban which extended to the social sphere. The applicant argued that by preventing her from wearing the burqa the ban violated her rights under articles 3, 8, 9, 10, 11 and 14 ECHR. The ECtHR completely dismissed her claims under articles 3, 10 and 11 ECHR, and focused its attention on articles 8, 9 and 14 ECHR, with a notable emphasis on article 9, the right to freedom of religion or belief.

The ECtHR’s judgment in SAS v France, for the most part, is balanced, well-reasoned and provides a thorough consideration of the French government’s justifications for the restriction of the applicant’s right to manifest her religion: public safety and ‘respect for the minimum set of values of an open and democratic society’. The latter category comprises three separate elements: gender equality, human dignity and ‘respect for the minimum requirements of life in society’ or ‘living together’. Whilst public safety is found within articles 8(2) and 9(2) ECHR, as noted by the ECtHR,  ‘respect for the minimum set of values of an open and democratic society’ does not correspond with any of the permissible limitations on article 8 and 9 ECHR (paras 116-7). Consequently, the ECtHR interpreted this justification as falling with the broad ‘protection of the rights and freedoms of others’ (para 117).

While the ECtHR established that the ‘burqa ban’ was prescribed by law (para 112), it did not accept that the ban pursued the ‘legitimate aims’ of gender equality and human dignity (paras 119-120). Specifically, in the context of gender equality, the ECtHR took ‘the view, … that a State Party cannot invoke gender equality in order to ban a practice that is defended by women – such as the applicant – in the context of the exercise of the rights enshrined in those provisions’ (para 119). This marks a significant departure from the ECtHR’s jurisprudence in the hijab cases. In Dahlab v Switzerland the ECtHR had held that the hijab ‘appears to be imposed on women by a precept which is laid down in the Koran and which … is hard to square with the principle of gender equality’ . However, this approach was the subject of criticism, most notably by Judge Tulkens in her dissenting opinion in Leyla Şahın v Turkey:

It is not the Court’s role to make an appraisal of this type – in this instance a unilateral and negative one – of a religion or religious practice, just as it is not its role to determine in a general and abstract way the signification of wearing the headscarf or to impose its viewpoint on the applicant. (para 12)

Neither Dahlab (a teacher) nor Sahin (a medical student) conformed to the idea of Muslim women as victims.  Yet, in these cases, the ECtHR accepted that the hijab was contrary to gender equality, and disregarded the meaning attributed to it by the applicants. This position both patronised the applicants and essentialised Islam as a religion that discriminates against women. By refraining from analysing the applicant’s choice of religious attire in SAS v France, the ECtHR has avoided repeating these errors. It is contradictory that the ECtHR has been willing to accept that the hijab is contrary to gender equality but not the burqa. Nonetheless, this is a welcome development in the ECtHR’s jurisprudence and it is to be hoped that SAS v France signals the end of the ECtHR making sweeping value judgments about items of religious clothing.

The ECtHR’s dismissal of the French argument that the ‘burqa ban’is necessary to protect human dignity also highlights a change in the approach of the Court.  The ECtHR pointed to the lack of evidence to support the State’s assertion

that women who wear the full-face veil seek to express a form of contempt against those they encounter or otherwise to offend against the dignity of others. (para 120)

The Court further recognised

the expression of a cultural identity which contributes to the pluralism that is inherent in democracy. It notes in this connection the variability of the notions of virtuousness and decency that are applied to the uncovering of the human body. (para 120)

Thus, rather than adopting an essentialised view of Islam, the ECtHR recognised that pluralism entails the recognition of different perspectives.

While gender equality and human dignity were not found to be legitimate aims pursued by Loi no 2010–1192, public safety and ‘respect for the minimum requirements of life in society’ or ‘living together’ were (para 115, 121-2). Consequently, the ECtHR went on to consider whether the restriction on the applicant’s freedom of religion was ‘necessary in a democratic society’ and proportionate to the aim pursued.

As noted in an earlier post (here), the ECtHR in Mann Singh v France accepted restrictions on the right to manifest religion on the grounds of public safety without requiring evidence of the necessity of the restriction. In SAS v France, the ECtHR accepted the justification that ‘a State may find it essential to be able to identify individuals in order to prevent danger for the safety of persons and property and to combat identity fraud’ (para 139). However, although the burqarestriction pursued a legitimate aim, the ECtHR did not find that it was necessary in a democratic society.  In the absence of ‘a general threat to public safety’, the ECtHR found that a blanket ban was disproportionate (para 139). Consequently, the ECtHR again departed from its previous jurisprudence to exercise a higher level of scrutiny of the legitimacy of the restriction and the evidence needed for a blanket ban. This perhaps indicates recognition of the serious consequences of a blanket ban and the need for particularly weighty reasons to justify it.

Even though the ECtHR was not willing to accept that the restriction on the applicant’s freedom of religion was justified on the ‘usual’ grounds of gender equality and public safety, it was willing to accept that the ‘burqa ban’ pursued the legitimate aim of ‘living together’ under ‘the protection of the rights and freedoms of others’. Despite not being listed in articles 8(2) and 9(2) as a legitimate justification for restricting a convention right, the ECtHR was willing to accept that this ‘far-fetched and vague’ concept (dissenting opinion para 5) fell within the ground of ‘the protection of the rights and freedoms of others’ (para 117). In assessing the scope of the concept, the Court recognised that

the face plays an important role in social interaction. It can understand the view that individuals who are present in places open to all may not wish to see practices or attitudes developing there which would fundamentally call into question the possibility of open interpersonal relationships, which, by virtue of an established consensus, forms an indispensable element of community life within the society in question. (para 122)

Consequently, after recognising that the restriction only impacted a relatively small number of Muslim women (para 145) and that the law was framed in a neutral manner (para 151), the ECtHR accepted that the practice of wearing the burqa or niqab was ‘deemed incompatible, in French society, with the ground rules of social communication and more broadly the requirements of “living together”’ (para 153). Therefore, the ‘burqa ban’ was proportionate to the aim pursued (para 157) and the applicant’s rights had not been violated.

A number of inconsistencies in the ECtHR’s consideration of ‘living together’ warrant further elaboration. The Court expressly recognised ‘the flexibility of the notion of “living together” and the resulting risk of abuse’, and, thus, the need to ‘engage in a careful examination of the necessity of the impugned limitation’ (para 122). However, the Court’s recognition that it should ‘engage in a careful examination of the necessity’ of the ‘burqa ban’ was contradicted by the acceptance of the ‘wide margin of appreciation’ of France (para 155). It is difficult to see how these two concepts are compatible with one another. In particular, the ECtHR recognised that France had a wide margin of appreciation because the ‘burqa ban’ had been adopted following a democratic process (para 154). However, in Young, James and Webster v United Kingdomthe ECtHR established the position that

[a]lthough individual interests must on occasion be subordinated to those of a group, democracy does not simply mean that the views of a majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position. (para 63)

Consequently, the democratic process does not per se justify restrictions being placed on the rights of minorities. In fact, in SAS v France, the ECtHR emphasises that it was ‘very concerned by the indications of some of the third-party interveners to the effect that certain Islamophobic remarks marked the debate which preceded the adoption of the Law of 11 October 2010’ (para 149). The ECtHR should in this instance have prioritised ‘a careful examination’ above the ‘wide margin of appreciation’ of the State, as legitimate concerns had been raised regarding prejudice and intolerance against Muslims in French society influencing the adoption of the law in question.  As surmised in the dissenting opinion of Judges Nussberger and Jäderblom:

While it is perfectly legitimate to take into account the specific situation in France, especially the strong and unifying tradition of the “values of the French Revolution” as well as the overwhelming political consensus which led to the adoption of the Law, it still remains the task of the Court to protect small minorities against disproportionate interferences. (para 20)

The concept of ‘living together’ used by France to justify the restriction placed on the religious manifestation of Muslim women pursues a distinctly assimilationist agenda. Although the ECtHR, throughout the judgment, reiterates that ‘pluralism, tolerance and broadmindedness are hallmarks of a “democratic society”’, the ECtHR’s conclusion that there is no violation of the applicant’s rights legitimises a law which eliminates pluralism from the social sphere and, thus, the associated intolerance against Muslims. Indeed, as stressed in the Dissenting opinion ‘… the blanket ban could be interpreted as a sign of selective pluralism and restricted tolerance … It has not sought to ensure tolerance between the vast majority and the small minority, but had prohibited what is seen as a cause of tension’(para 14).

In sum, the decision is a distinct departure from the ECtHR’s jurisprudence in other cases concerning the rights of Muslim women to wear religious attire. The rejection of France’s justifications based on gender equality and public safety makes progress towards rectifying some of the criticisms of the ECtHR’s earlier decisions in this area. However, the recognition of the concept of ‘living together’ as a justifiable ground for the restriction of the right to manifest religion is cause for concern. The concept, which does not find expression in the ECHR, has been prioritised above ‘concrete individual rights guaranteed by the Convention’ (para 2 dissenting opinion). This introduces the risk that the majority will be permitted to dictate that minorities assimilate in order to ‘live together’ instead of pursuing the more integrationist aims of ‘pluralism, tolerance and broadmindedness’.  Although the ECtHR has recognised the ‘risk of abuse’ of this concept, by affording France a wide margin of appreciation, the ECtHR has not heeded its own warning. The concept of ‘living together’ has the potential to proliferate into future judgments concerning the right to manifest religion, in a similar manner to the concept of secularism following the Sahin case (paras 115-16). As noted in an earlier post, the ECtHR must decide whether it is willing to protect the rights of Muslim women to manifest their religion. The addition of ‘living together’ to secularism, gender equality, public safety and the protection of children as permissible grounds of limitation in these cases gives little cause for optimism. What little remained of the right to manifest religion may just have been eroded.

Dr Stephanie Berry is Lecturer in  Public Law at the University of Sussex. She acted as a legal adviser for the applicant in the case of SAS v France. The opinions expressed in this post are the author’s own and do not necessarily represent the views of other members of the legal team.