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 data sources are always accurate. Even when we realise otherwise, we simply take exceptions to prove the rule. Yet law is like an incoming tsunami and if you don’t take shelter you are sure to get either very wet or very drown.

We work hard at FedEE to encourage legal compliance. It is our mission to keep employers out of court. But however law abiding any company may be there is always the chance that they will be accused of an infringement and it will be a costly matter to prove their innocence.  The law can also be interpreted differently by experts – as in the case of one member company that had sought opinions from three French law firms, only to receive contradictory answers from each.

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 in the case of termination, any leave taken during a notice period would simply extend the notice period – and 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.

We no longer take as a dependable source any literature written by, or for, the European Commission as it is frequently so full of errors – like the blanket description 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 layers 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 – very adamantly – 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 the court by the Advocate-General is so often clearly at variance with established precedents or legal principles. The Employment Appeal Tribunal 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 illustrate below, another of their rulings has just been overturned by the Court of Appeal because no-one had bothered to read the minimum wage regulations before pronouncing judgement. Also in the UK the government’s employment advisory service ACAS advises that employers have no legal obligation to provide a reference –  well, in fact, two accepted court precedents clear spell out that they do.

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 demonstrate how much we do to seek accuracy and cut through to the relevancy of a new Act or court finding. Most legal sources, however dressed up in glossy formats, are significantly out of date. Updating is usually done periodically – often every one or two 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 members said largely the same thing. They needed us to check out the legal advice they were receiving from abroad. Today that need has not gone away. Government agencies, courts, academics and even lawyers frequently get things wrong – so 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 – such as the recent New Jersey Equal Pay law that applies to all protected classes, not just gender. Or the creeping requirement by governments – especially across the Middle East – that employers reserve an increasingly large quota of all jobs for nationals.

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.