Understand Your Rights. Solve Your Legal Problems
After months of anticipation, the Apprenticeship Levy has arrived, and is in effect as of 6th April 2017. Here Richard Marsh, Apprenticeship Partner Director from Kaplan, an Apprenticeship Training Provider talks to Lawyer Monthly about the benefits of the coming apprenticeship legacy in the country, and the social changes it will set in motion. Historical support for the article comes from Krista Cowman, Professor of History & Director of Research at University of Lincoln.
Apprenticeship schemes are by no means a new concept, and with a heritage of hundreds of years, they have tangible benefits to businesses and individuals. While many businesses already understand the true value of Apprenticeships, there is still some confusion among organisations when it comes to details and impacts of the Levy.
Finance professions, such as tax and accountancy, require on-going learning and first-hand experience of complex scenarios, making Apprenticeships an effective way of ensuring employees gain sufficient knowledge. The blend of practical experience and taught theory is a good combination for many individuals. Working, learning, and earning, makes Apprenticeships an attractive opportunity for young people, graduates and career changers, equipping them to become experts and valuable assets to any business or organisation.
The Levy is intended to increase the quantity and quality of Apprenticeships, supported by the new Apprenticeship standards, which will ensure that key skills, work experience and necessary qualifications are gained, with support from training providers. The ambition underpinning the changes is to encourage more apprentices and more businesses offering Apprenticeships.
To gain a better understanding of the influence Apprenticeships have and their importance in today’s business landscape, it’s important to look at their foundations and development over the past centuries.
Apprenticeships in society
Dating back to Tudor times, Apprenticeships have always centred around ‘learning on the job’. However, their popularity has varied through the ages, with legislation, business landscape and societal views influencing programmes and their prominence. Apprenticeships began to decline by the end of the 19th century, leading to calls for the government and philanthropic bodies to introduce legislation to support them. The Institute of Chartered Accountants in England and Wales (ICAEW) was established by royal charter in 1880, creating a robust system that benefited both employer and apprentice. Following the First World War, during which many Apprenticeships were suspended, the government reaffirmed its commitment to Apprenticeships, initiating the Interrupted Apprenticeships Scheme in 1919, where demobilised soldiers would be eligible for a higher wage if they returned to complete their Apprenticeships. A downturn in the popularity of Apprenticeships in the 1970s called for the government to revitalise schemes and their relevance, at a time when they were often considered a less academic path. In 1995 Modern Apprenticeships were launched, merging contemporary employment practices of equal opportunities with the traditional notion of Apprenticeships, ensuring taught skills were suited to the modern economy.
While traditional Apprenticeships originated in trades such as carpentry and textiles, their benefits have since been recognised in corporate environments, with their gradual introduction into a broad range of sectors and appealing to individuals from diverse backgrounds. Today’s Apprenticeship programmes in the finance sector have evolved to meet the needs of employers and the skills required by businesses, combining office-based with formal education to allow individuals to put theory into practice in everyday scenarios.
The reciprocal partnership
The importance of a reciprocal partnership has been fundamental since the early days of Apprenticeships, with schemes benefiting both employer and apprentice. In the mid-19th century, employers were limited to a maximum of three apprentices at any one time to ensure good quality training and sufficient attention for each individual. A fee would be paid by the apprentice’s parents or a charity, and in return apprentices would receive board, lodgings and training from their ‘masters’ or employers. Employers then benefited from free labour, which became increasingly valuable as the apprentice became more skilled.
Today, the idea of mutual investment between employer and apprentice remains, with Apprenticeships supported and overseen by training providers and the government to ensure high quality programmes and positive outcomes are achieved. For businesses, the benefits are clear.
The National Apprenticeship Service has found that 89% of employers say apprentices make their business more productive, and 75% find that Apprenticeships help to lower recruitment costs. In addition, 80% say that Apprenticeships will play a bigger part in their future recruitment plans. Employers also tell us that Apprenticeships are a great way to ensure diversity in their workforce and they provide effective development opportunities for managers as they have to use skills such as coaching and mentoring.
Employment opportunities
Alongside valuable experience, Apprenticeships have always offered individuals strong employment prospects. In the 1880s, Apprenticeships were seen as a positive alternative to ‘Blind Alley’ jobs – jobs that offered youngsters comparatively high wages when they left school, then fired them when they turned 18 to replace them with new school leavers. Throughout the history of Apprenticeships it has been common for employers to offer apprentices a full time paid position once programmes come to an end.
This is still the case today. Apprenticeships are an increasingly popular option for school and college leavers and those looking to change career, providing a credible alternative to traditional university degrees. Employers and HR teams work with training providers to ensure individuals meet their goals and gain the necessary qualifications, whilst fully integrating them into office teams to gain maximum practical experience. Alongside the Levy, there is further encouragement for businesses to get on board with Apprenticeship schemes. Within the finance industry, many courses are being refreshed and new ways to qualify are becoming available from professional bodies such as CIMA and ACCA. In addition, businesses can now receive a 90% subsidy plus £1,000 cash for any under 19-year old given an Apprenticeship, and National Insurance reductions for under-25s.
The Apprenticeship legacy
Throughout the heritage of Apprenticeships, businesses have adapted to social changes and legislative developments, seeing the quality and relevance of schemes improve in keeping with changing business landscapes. However, whilst the new Apprenticeship Levy demonstrates the latest advance, the opportunities and measurable benefits for both employers and individuals remain an ongoing priority. Whether they have an existing Apprenticeship programme or not, organisations across the finance sector should ensure they’re fully aware of the potential value apprentices can add, and the opportunities now available.
Kaplan is one of the largest and oldest Apprenticeship providers to the financial and accountancy industries. With knowledge and experience from many decades spent supporting training and development, they can advise and assist businesses on today’s Apprenticeship needs.
Research has shown that more than three quarters of people in the UK are unaware that the recent Investigatory Powers Act has been passed, despite the effects it may have on their human rights.
The survey, conducted by serious and corporate crime defence specialists, Rahman Ravelli, also revealed that there was a lack of awareness not only across the board, but particularly for young people. 81% of 18 – 24 year olds were shown to have no concept of the changes.
The Investigatory Powers Act 2016 has serious and far-reaching implications on human rights in the UK, so much so that it has been dubbed the ‘Snooper’s Charter’. Not only does it strengthen measures that had existed before, it extends its reach to communications companies who must now hand over customer data to UK intelligence agencies.
It also provides better and more sophisticated technology to hack into computer systems, devices and shared networks. Given its seriousness and the overwhelming lack of awareness, the UK public, particularly millennials, need to be more informed about their ‘digital footprint’.
Commenting is Aziz Rahman, Senior Partner at Rahman Ravelli: “The authorities now have near-unlimited sanction to access your browsing history, online habits and more - all without any evidence of wrongdoing.
“You would think that such a breach of privacy would be a point of concern for people, but instead the act was passed with minimal complaint. It shows a real lack of awareness that needs to be addressed.”
Where millennials are concerned, they are vulnerable enough as it is. According to fraud prevention service Cifas, the last year saw a 34% rise in under-21s falling victim to fraud crime as a result of poor security measures.
Elsewhere, a Go Compare survey found that 86% of 18-24 year olds inadvertently share personal data on social media, which can then be used against them. From weak passwords (pets’ names were the most popular) to lax financial habits, young people are already leaving themselves open.
Mr. Rahman said: “Young people are at danger from either side now - they are vulnerable to hackers as well as the UK intelligence agencies. Because they have grown up with the internet, they have possibly become complacent.
“It all starts with resources, and information. Being aware of what the Investigatory Powers Act means for your human rights is the first step. Protect yourself, and take care what you post online.”
Rahman Ravelli has published an extensive guide on the Investigatory Powers Act, which explains what it means for human rights and breaks down the different kinds of surveillance methods used in the UK.
(Source: Rahman Ravelli)
Brexit continues to generate political dramas and dominate the news agenda in the UK – a phenomenon likely to continue for the next two years and probably beyond. The resignation of the UK’s ambassador to the EU, Sir Ivan Rogers – apparently because of his views on the complexity and likely timescale of negotiating Brexit – is just one example of recent controversy. But amidst all the noise, lawyers are trying to understand the real impacts that Brexit is going to have on the legal landscape, and in particular, what changes it will bring on both domestic and cross-border litigation. Here, Christian Tuddenham and Kelly Hagedorn, both Partner at Jenner & Block London, explain to Lawyer Monthly what those changes may look like.
The one certainty
A substantial body of UK legislation derives from EU law. At present, it is almost entirely unclear what long-term effects Brexit will have on this body of law. Other than the Great Repeal Bill, which will copy across all EU law into domestic UK law for a smooth transition on the day after Brexit, the government has yet to set out its plans regarding any specifics, other than that they intend to "amend, repeal and improve" individual laws as necessary. As with everything Brexit, all that is really certain is that there is uncertainty.
There are all sorts of reasons why uncertainty about Brexit is no good for business, but from a risk management perspective an obvious concern is the impact on businesses’ ability to anticipate, manage and resolve legal issues and disputes efficiently. So for example, there are numerous questions about what Brexit might do to existing contractual relationships: for instance, could agreements relating to the provision of goods or services into or out of the EU be vulnerable to termination on the basis of frustration, or pursuant to force majeure or material adverse change (MAC) clauses? Another area of uncertainty concerns the impact on English jurisdiction clauses, and whether these will operate as intended, post-Brexit. There are also important questions regarding businesses’ abilities to enforce English judgments within the EU after the UK leaves. We look at these questions below.
Contractual relationships
The narrow application of the doctrine of frustration means that there will be limited circumstances in which it might apply post-Brexit to permit the discharge of a contract. It will be necessary to show that the contract has become impossible or illegal to perform, or that the obligations in question have fundamentally altered such that the contract is not only more onerous, but radically different from the original agreement. Increased costs or lower profits attributable to Brexit, for instance, will not constitute frustration.
There may be greater scope to terminate a contract pursuant to force majeure or MAC clauses. Each case will depend on the terms of the clause and the particular facts. Changes in economic circumstances will generally be outside the scope of force majeure, but some clauses do include government or regulatory action as potential force majeure. The ability to rely on a MAC clause in the context of an acquisition will in part depend upon whether the asserted MAC is an “external” event (for example, a change in interest or exchange rates) or an “internal” event specific to the transaction (for example, a change in the target’s credit rating or the loss of its passporting rights). It is generally only the latter types of event that will allow MAC clauses to operate.
English jurisdiction clauses
Regulation (EU) No 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the ‘Recast Regulation’) currently ensures that jurisdiction agreements contained in contracts are respected by all EU Member States. This provides certainty and expediency, which is obviously desirable when considering where and how to resolve commercial disputes.
What will happen post-Brexit? Although it is possible that the UK might contract into some form of treaty arrangement with the remaining EU Member States that mimics the terms of the Recast Regulation, negotiating something of that nature is unlikely to be a priority for either the UK Government or the European Commission.
What are the other options? The UK could seek to accede to the 2007 Lugano Convention, which – like the Recast Regulation – is designed to promote recognition of jurisdiction clauses within (and outside) the EU. Alternatively, the predecessor to the Recast Regulation, the Brussels I Regulation (EC) No 44/2001, might apply. However, both the Lugano Convention and Brussels Regulation differ from the Recast Regulation in the important respect that they do not require EU Member State Courts to stay proceedings that are commenced in apparent breach of a jurisdiction clause. The loss of this protection would therefore allow litigants to delay and complicate legitimate claims via the commencement of parallel proceedings. In this scenario, it will be all the more important for Claimants seeking to rely on an English jurisdiction clause to commence proceedings without delay, and thereby pre-empt any attempt by one’s opponent to obstruct the claim.
A different route would be for the UK to ratify the 2005 Hague Convention on Choice of Law Agreements (which applies to all EU Member States except Denmark), but this Convention only requires recognition of exclusive jurisdiction clauses.
If nothing is done, then the Courts of individual EU Member States will be free to apply their domestic law. Whilst it seems likely that the Courts of many EU Member States would generally continue to recognise English jurisdiction clauses, in the absence of a unifying instrument the approaches taken by different EU Member States would almost inevitably be different and quite probably inconsistent. That said, there is an incentive for the EU Member States to be practical. Any marked change in the approach taken by EU Member State Courts towards appropriate recognition of English jurisdiction is likely to provoke a move away from Europe altogether, towards New York, Singapore or Hong Kong.
Given the uncertainty, there may be some benefit in considering whether providing for an alternative EU Member State to have jurisdiction might be beneficial. This would ensure that the choice of jurisdiction will be respected, and should prevent counterparties attempting to exploit the uncertainty and seek to avoid a jurisdiction clause by launching proceedings in another country.
Enforcement in the EU
Currently, English judgments are enforceable in all EU Member States pursuant to the Recast Regulation. As explained above, there is a range of alternatives to the Recast Regulation post-Brexit. The best outcome would be the maintenance of the status quo via the negotiation of a treaty or instrument of equivalent effect to the Recast Regulation, but this would take time and resources. A more likely scenario is the application of either the Lugano or Hague Conventions. However, enforcement under either Convention would include a requirement to obtain a declaration of enforceability from the enforcing Court; the Recast Regulation abolished the need for this step. A further disadvantage is the Hague Convention’s limited application only to agreements that contain exclusive jurisdiction clauses. The Hague Convention also permits a Court to refuse to enforce a judgment for a broader range of reasons than is the case under the Recast Regulation.
An alternative would be for the UK to enter into bilateral arrangements with EU Member States under the Administration of Justice Act 1920 or the Foreign Judgments (Reciprocal Enforcement) Act 1933. Absent that, the default position will be that enforcement of English judgments will be left to the domestic law of individual EU Member States. Whilst the general expectation is that EU Member States would adopt a pragmatic and sensible approach to enforcement (if only in the interest of maintaining reciprocity), navigation of 27 different domestic laws and procedures would mean uncertainty, greater complexity and increased cost.
Pending clarity on the post-Brexit EU enforcement regime, businesses and their legal advisors should consider arbitration (and the inclusion of arbitration clauses) as an alternative to litigation. The 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which governs the enforcement of arbitral awards worldwide, has been ratified by all EU Member States and will be unaffected by the UK’s departure from the EU.
Concluding thoughts
The inherent uncertainty makes any attempt at definitive advice on how to manage the implications of Brexit on dispute resolution impossible and unwise. However, the importance of thinking ahead (where the situation allows) cannot be overstated. Is your contract vulnerable to being challenged under a MAC or force majeure clause? Where and with whom might you be doing business (and therefore possibly in dispute) in two years’ time? Where might you need to enforce any judgment? What use does your organisation currently make of arbitration (and indeed other alternative dispute resolution mechanisms)? Those who take the time now to consider these sorts of questions are more likely to be those who experience the best outcomes in these turbulent times.
The National Small Business Association (NSBA) recently released the 2017 Small Business Taxation Survey which quantifies the federal tax burden on small-business owners, and provides their opinions on various tax reform proposals.
"Today, we have the first real chance for broad tax reform in a generation," stated NSBA President and CEO Todd McCracken." However, the overwhelming majority of small businesses believe Congressional failures—partisanship and a lack of effort—are the biggest challenge facing reform, and one-third don't believe tax reform will ever be enacted."
Among the survey's findings: the majority of small businesses say that administrative burdens are actually a bigger problem than the financial cost of federal taxes; and one-in-three small businesses report spending more than 80 hours—two full work weeks—each year on federal taxes. The survey also asked about sales tax, payroll taxes and deficit reduction, and ranked the most problematic taxes as well as the most useful deductions.
When asked about tax policy, the most broadly-supported tax reform is one that would reduce taxes and deductions for both corporations and individuals—no surprise given the majority of small businesses (83 percent) are pass-through entities and therefore file business taxes at the individual tax level. Furthermore, since the majority of small businesses don't export or import, 67 percent said that a border-adjusted tax system would have no direct impact on their business.
"The number-one tax related concern of small businesses today is the possible elimination of deductions and credits without an offsetting reduction in tax rates," stated NSBA Chair Pedro Alfonso of Dynamic Concepts, Inc. in Washington, D.C. "The need for broad tax reform—and not just a tinkering here and there—is a real need for millions of American small businesses."
The 2017 NSBA Small Business Taxation Survey was conducted online March 8th - 30th among 950 small-business owners.
(Source: National Small Business Association)
The UCLA School of Law has received a $20 million gift to launch a new institute that will serve as a national hub for human rights education and advocacy. The Promise Institute for Human Rights at UCLA School of Law will be generously supported by proceeds from the feature film "The Promise," as well as other donations and university resources. The donation is the largest gift to launch a new institute in the history of UCLA Law.
"The Promise," which is set during the Armenian genocide that began in 1915, opens in theaters on April 21st.
"In so many corners of the campus, our faculty and students are focused on identifying and addressing the conditions that create social unrest, displacement and injustice," said UCLA Chancellor Gene Block. "The Promise Institute will become UCLA's center for collaboration in this area and will greatly enhance our ability to serve a global leadership role."
The institute will advance the law school's already-extensive work in the field of human rights. Law school faculty and students will collaborate with scholars in other disciplines from across the UCLA campus, and the institute will train the next generation of human rights leaders and develop strategies to address crises around the globe.
Dr. Eric Esrailian, the lead producer of "The Promise" and a faculty member at the David Geffen School of Medicine at UCLA, spearheaded the effort to establish the institute.
"The Armenian genocide must never be forgotten, and this need was one reason why we made 'The Promise,'" Esrailian said. "However, human rights tragedies — in Syria, the Congo and South Sudan and a global refugee crisis — continue to unfold today.
"The Promise Institute is so named because UCLA and the UCLA School of Law are making a commitment to keep the promise to the victims of human rights abuses — that we will create the tools and train people of integrity and talent to address these crises. Out of the darkness of the Armenian genocide and our film, we will bring light into the world to help people who need it today."
The institute will expand UCLA Law's course offerings in human rights studies, enhance hands-on programs in human rights law and policy, publish research and policy assessments, bring experienced human rights scholars and practitioners to UCLA Law as faculty members and guest speakers, support students through fellowships and scholarships, and host symposia and related events.
UCLA Law students and faculty currently work with the Office of the Prosecutor of the International Criminal Court and the United Nations Special Rapporteurs on the Right to Food and on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance; and with human rights organizations in countries including Bangladesh, Honduras, India and South Africa.
"This visionary gift is a giant step toward making UCLA Law the premier center for human rights in Southern California," said UCLA Law Dean Jennifer Mnookin. "While the school already has a strong record of human rights scholarship and activity, the Promise Institute will greatly enhance our program and have an impact felt around the world. Dr. Esrailian and the makers of 'The Promise' have shown extraordinary leadership, and we are thrilled that their commitment permits us to launch an institute that promises to grow into a major academic crossroads for human rights."
The gift announcement is being made on the same day that UCLA Law is hosting a conference on contemporary challenges to human rights, and just four days before the film opens on screens across the U.S. "The Promise" is set during the Armenian genocide, which began in 1915, when more than 1.5 million people perished in an atrocity driven by ethnic and religious intolerance. It is directed by Terry George (director and co-writer of "Hotel Rwanda") and stars Oscar Isaac, Charlotte Le Bon, Christian Bale, Shohreh Aghdashloo and an international cast.
Esrailian produced "The Promise" with Phoenix Pictures chairman and fellow UCLA alumnus Mike Medavoy and veteran film producer William Horberg.
Esrailian and Anthony Mandekic, president and CEO of Tracinda Corporation, are also the co-managers of Survival Pictures, which was founded by the late Los Angeles businessman and legendary philanthropist Kirk Kerkorian. Survival Pictures was established to tell this story of perseverance and human endurance, and it has begun a campaign to teach the public about the genocides and mass atrocities of the 20th and 21st centuries.
Support for the Promise Institute is part of the $4.2 billion Centennial Campaign for UCLA, which is scheduled to conclude in December 2019 during UCLA's 100th anniversary year.
(Source: UCLA School of Law)
A new system of electronic certification to better monitor imports of organic products becomes applicable today, making the EU a global leader in traceability and in the collection of reliable data on trade of these products.
This pioneering e-certification system will contribute to enhancing food safety provisions and reducing potential fraud. It will also reduce the administrative burden for operators and authorities, and provide much more comprehensive statistical data on organic imports.
Both paper and e-certification will be used during a 6-month transition period. As of 19th October 2017, organic imports will be covered only by e-certification.
EU Commissioner for Agriculture and Rural Development Phil Hogan said: "Our commitment to stringent certification and inspection measures is an important component in the EU's food safety standards. These high standards have allowed us to become the best address for food in the world, but we must always strive to find new and better ways to do even more. These new rules will improve the traceability of organic products, which is an important growing market."
In practical terms, the changes will require the addition of these import certificates into the Trade Control & Expert System (TRACES) – the existing EU electronic system for tracking movements of food products across the EU. Accessible 24/7, the TRACES system has been shown to facilitate trade by enabling trade partners and competent authorities to easily obtain information on the movements of their consignments, and speeding up administrative procedures. It also proved to be an invaluable tool in facilitating the rapid reaction to health threats by tracing the movements of consignments and facilitating the risk management of rejected consignments.
Background
Following recommendations from the European Court of Auditors and a request from Member States to address concerns about monitoring the movements of organic products and the consistency of import checks, the new rules are aimed at improving the traceability of organic products and reducing potential fraud.
The Commission implementing regulation (EU) 2016/1842was published on 14th October 2016, amending Regulation (EC) No 1235/2008 as regards the electronic certificate of inspection for imported organic products and certain other elements, and Regulation (EC) No 889/2008 as regards the requirements for preserved or processed organic products and the transmission of information.
(Source: European Commission)
The Canadian Automobile Association (CAA) believes the marijuana legislation recently introduced in Canada would establish stiff new penalties for drug-impaired driving, but that several issues still need to be dealt with to make the new regime effective.
CAA believes three issues need to be addressed for an effective drugs driving regime: clear law, tools for law enforcement and public education. Today's announcement deals with the law but leaves questions around funding and public education. At the same time, CAA is pleased the government toughened the Criminal Code provisions on alcohol-impaired driving to increase penalties and make it easier to secure a conviction.
"The legislation introduced today is a positive step but it is only one piece of the puzzle," said Jeff Walker, vice president of public affairs, CAA National. "We're still waiting for the details on additional funding to make the legislation enforceable. This needs to happen sooner rather than later."
While the government recently committed to making more money available to train police in drug recognition and to acquire testing devices, it didn't say how much or when it will be available. The government also reiterated a Budget 2017 commitment to spend less than $2 million a year over five years on public education - a sum that is clearly inadequate, given the misconceptions about marijuana's effect on driving.
CAA polling has found almost two thirds of Canadians (63%) are concerned that roads will become more dangerous with the legalization of marijuana, and that 26% of Canadians between the ages of 18 and 34 believe a driver is either the same or better on the road under the influence of marijuana.
"Right now law enforcement is not sufficiently equipped to enforce the law and the cost to train them is high," said Walker. "And we know from our experience with alcohol that public education significantly reduces the amount of impaired driving. It is urgent we get police properly trained, and messaging on myths and penalties to people."
In addition, the new law would require a positive blood test within two hours in order to get a conviction. Evidence from US jurisdictions is that it often takes longer than two hours to complete the process, and also requires the presence of a trained technician to take the sample, putting a tough burden on law enforcement and raising questions about how workable the provision will be.
(Source: Canadian Automobile Association)
The ECJ recently handed down its judgment in relation to the long running cases in Belgium (Achibita v G4S) and France (Bougnaoui v ADDH). These high-profile cases focussed on whether bans on religious symbols constituted as direct or indirect discrimination. Michael Farrelly, employment lawyer at Excello Law, here gives Lawyer Monthly a run down on the cases, and explains what’s next for UK businesses.
The European Court of Justice (ECJ) judgments handed down recently in the cases of Achibita v G4S and Bougnaoui v Micropole - cases which originated in Belguim and France respectively - dealt with the issue of whether the banning the wearing of religious symbols in the workplace amount to discrimination. In both cases, Muslim women had ultimately been dismissed following a refusal to stop wearing a headscarf when told to do so by their employers.
The differences between each case, and between the judgment ultimately arrived at, offer a useful guide to the manner in which the wider debate on such topics is unfolding. It should be noted (and this is something reflected in the more contentious of the two judgments) that questions of this kind do not arise in isolation. The actions of employers in the first place, and of the courts when requested to rule on those actions, are reflective of the wider society in which they take place. This was certainly reflected in the response to the Achibta judgment, which was welcomed (rightly or wrongly) by right of centre parties such as Alternative für Deutschland in Germany, as representing the ECJ giving blanket approval to the banning of religious symbols in the workplace.
In reality, the message sent out by the two judgments was subtler, not to say somewhat muddled. The case of Bougnaoui v Micropole involved Ms Bougnaoui being asked to remove her headscarf by the IT company following a complaint from a client whom she had visited. The ECJ found that Ms Bougnaoui had been discriminated against, and that the concerns (not to say prejudices) of an individual client did not represent a genuine occupational requirement, such as a health and safety concern regarding the headscarf in question.
In the case on Achibita v G4S, the request that Ms Achibita remove her headscarf was based upon a wider company policy stating that employees are not allowed to wear symbols of political, philosophical or religious significance, as such items might impact upon the neutral image the business wishes to portray.
The judgment in this case was that Ms Achibita had not been a victim of discrimination (either direct or indirect), in that the ban in question had been a blanket ban and not specifically targeted at her. In many cases, however, a judgment of indirect discrimination could have been reached, on the grounds that a practicing Muslim may find it more difficult to comply with the ban than other members of the workforce. The fact that the judgment did not make this distinction is what has led to it being heralded (or decried) as marking a major change of direction. In past cases the ban has been upheld on the basis that it was necessary for the employee in question to carry out their job effectively and safely or another legitimate business aim. The judgment in this case, however, went further and found that the right of the employer to carry out their business in a particular way outweighed the right of Ms Achibita to wear her headscarf.
It is the finer detail of the ruling which might prove useful as a guide for UK firms going forward however. Not in terms of having to work to ECJ strictures, perhaps, but with regard to the factors which the ECJ states national courts should take into account. These include the nature and prominence of the political symbols in question, the work being carried out by the employee and, somewhat vaguely, the ‘national identity’ of the country in question.
It is this ‘national identity’ which is, of course, the most difficult aspect of the formula to pin down. In the past, UK courts have reflected a tendency to side with the employer against the employee where symbols of a religious nature were concerned. Cases such as Farrah v Global Luggage Co Ltd and Azmi v Kirklees Metropolitan Borough Council were employment tribunals dating from 2012 and 2007 respectively, and dealt with employers claiming discrimination on the grounds of Islamic clothing. The cases of Shirley Chaplin and Nadia Eweida, on the other hand, involved the NHS and British Airways respectively and centred upon employees being refused permission to wear the Christian symbol of the cross. In all cases, the authorities passed judgment in favour of the employers, and the ‘national identity’ post-Brexit, may lean further in this direction. Any cultural inclination to give less credence to symbols of the Islamic faith, however, would potentially be counter balanced by a desire to ‘take back control’ by favouring more traditional Christian symbolism. To complicate matters further there have been commitments made recently to protect women in the workplace against discriminatory dress codes which insist upon them wearing uncomfortable and even painful high heeled shoes. Although dress codes of this kind are already illegal, the reality is that the lack of clarity and any threat of punishment leave many companies feeling free to circumvent the rules, something which the Government, following a recent Petitions Committee and Women and Equalities Committee report, has pledged to act upon.
Against a backdrop as complex and shifting as this, UK companies may need to establish a clothing policy which is consistent, practical and easy to defend on the basis of it being a proportionate and legitimate means of achieving a legitimate business aim or a genuine occupational requirement. The temptation to shape any policy on the basis of an assumption of the direction which the ‘national identity’ is taking is to be resisted, not least since the actual form which the UK’s post-Brexit laws will take very much remains to be seen. Particularly as the Great Repeal Bill will, initially at least, incorporate EC law and ECJ judgments into UK law. As Brexit itself, and the election of President Trump demonstrated, second-guessing the national mood has become more difficult than it has probably ever been.
The new penalty for using a mobile phone while driving has been widely reported but did you know the law could apply to using a mobile to make contactless payments at a drive-through restaurant? Lauren Rae, Dispute Resolution and Claims Associate at leading Scottish law firm Thorntons, sheds light on the topic.
She said: “The new legislation is not limited to using a mobile for making calls and texts – it is illegal to operate a mobile telephone, in any way, which detracts from the driver’s attention to the road.
“This includes checking social media, or playing and changing music. And it may also include using a mobile telephone to make contactless payments at a drive-through restaurant.
“Put simply, touching a mobile phone whilst the vehicle’s engine is running, could, on a strict interpretation of the law, amount to a criminal offence.
“I would anticipate that the Police and Procurator Fiscal are likely to deploy a common sense approach in the prosecution of such offences – but drivers need to be aware of the risks and potential penalties for using a mobile phone whilst driving for any purpose.
“To avoid falling foul of the law, drivers should switch off their vehicle’s engine and apply the handbrake prior to using their mobile phone at any time.”
From 1st March 2017, the fixed penalties for driving whilst using a mobile telephone doubled from a £100 fine and three penalty points to a £200 fine and six penalty points. It is not illegal to use your mobile telephone hands-free. However, it is illegal to drive whilst using your mobile phone.
(Source: Thorntons Solicitors)
Scotiabank Economics recently released the second of its North American Free Trade Agreement (NAFTA) report series. In this report, Scotiabank Economics looks at some likely areas of vulnerability in the event of a substantial revision of US trade policy and provides simulation results from possible scenarios that are broadly consistent with recent statements by US officials.
"Canada and Mexico are highly exposed to any changes in US trade policy, as both countries send over three-quarters of their exports to the US, while only about one-quarter of global US exports are sent to its NAFTA partners," said Jean-François Perrault, Chief Economist at Scotiabank. "But the US isn't immune to negative shocks from changes in its trade policies. If negotiations to revise NAFTA fail, any move by the US to impose tariffs on trade with Canada and Mexico would have a material macroeconomic impact on all three countries and potentially serious effects on individual states, provinces and industrial sectors."
Additional highlights of Scotiabank's NAFTA Report:
Scotiabank provides clients with in-depth research into the factors shaping the outlook for Canada and the global economy, including macroeconomic developments, currency and capital market trends, commodity and industry performance, as well as monetary, fiscal and public policy issues.
(Source: Scotiabank)
