Darren Newman: Dragons’ Den’s Duncan Bannatyne, the Daily Mail, the Equality Act 2010 & Me

DarrenNewman.jpgWe present a guest blog post today from employment law expert and XpertHR contributor Darren Newman

 about his Twitter run-in on Monday 4 October 2010 with Duncan Bannatyne of the Bannatyne Group and the BBC television programme Dragons’ Den.

Darren used social networking site Twitter to contact Mr Bannatyne with regard to his piece in Monday’s Daily Mail on the Equality Act 2010 (which Darren came across following a Twitter reference tweeted by our very own Laura Chamberlain of personneltoday.com). Mr Bannatyne promptly responded, resulting in a lively exchange of views, which can be tracked here.

In this guest blog post, Darren describes his dialogue to date with Mr Bannatyne, and explains his own views on the points of discussion around the Equality Act 2010 raised so far. In the interests of fully open debate, we would like to offer Mr Bannatyne himself or any of his representatives the opportunity to respond here, either via the comments field or via a new guest blog post on XpertHR Employment Intelligence.

Update 1 (Thursday 7 October 2010): Mr Bannatyne has now responded to XpertHR’s invitation to comment on Darren Newman’s post. My Twitter reminder of our offer to him and his response are reproduced below. Mr Bannatyne subsequently entered into an exchange on this topic with recent XpertHR guest blogger Sukhvinder Pabial. Sukhvinder’s exchange of Tweets with Mr Bannatyne can be seen here, and he has blogged about it here.

XpertHR’s invitation to Mr Bannatyne remains open, should he have anything further to say on this topic.

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Update 2 (Thursday 7 October 2010): Darren Newman has recorded a short audio blog entry (embedded below, by kind permission of Mr Newman), in which he reflects on his run-in with Mr Bannatyne, and on how employment law is presented in the tabloid press.

Listen!

 

Update 3 (Friday 8 October 2010): The Guardian has just published a story about Darren Newman’s run-in with Mr Bannatyne, reporting that Mr Bannatyne is ”embroiled in [a] row over equalities legislation.”

Update 4 (Tuesday 12 October 2010): Mr Bannatyne has written a new article setting out his views on the Equality Act 2010 in today’s Daily Telegraph. Mr Bannatyne here describes the Equality Act 2010 as “so pedantic as to be damaging for honest employers trying to get on with the job of running the country’s businesses and boosting its economy.” Reactions to Mr Bannatyne’s latest article include the following.

  • Bannatyne wades in again on “pedantic” Equality Act XpertHR employment law editor John Read responds to Mr Bannatyne’s Telegraph article.
  • The Guardian’s Society Daily includes coverage of what is being dubbed “Bannatynegate”.
  • Darren Newman has written a new blog post following the publication of Mr Bannatyne’s Daily Telegraph article. Here,  Darren takes issue with the misreporting of employment law issues in the press. As Darren sees it, Mr Bannatyne is “a symptom, not the disease.” He continues: “The standard of debate around equality law in the mainstream media is dreadful. Almost nothing I read is a fair summary of the law and what employers need to know. Too often the news is hijacked by those with an agenda, who want to use the introduction of the Equality Act as a hook to hang their particular issue on. HR professionals and lawyers know better than to get their information from the Daily Mail or the Daily Telegraph – but line managers, business owners and employees are vulnerable to misleading information of his sort.”
  • Darren Newman also noted via Twitter that, in his view, “DB gets fewer things wrong in this article than he does in the Daily Mail – but then it’s a shorter article!”
  • Employment lawyer and blogger Mrs Markleham has written about media reactions to the Equality Act 2010 in a new blog post which includes mentions of Mr Bannatyne’s Daily Mail and Daily Telegraph articles. She poses a very interesting question here: “Why is the Equality Act getting such bad mainstream PR?”

Update 5 (13 October 2010): Mr Bannatyne has once again used Twitter to reiterate his confidence in his understanding of the Equality Act 2010, this time in an exchange with Cesare Urban. In Mr Bannatyne’s own words: “My analysis of equality act is 100% correct, checked by lawyers on 2 papers now.”

Update 6 (14 October 2010): “Bannatynegate” has now received its third write-up on the Guardian website. The Guardian’s society, health and education policy editor Patrick Butler provides a neat overview of the latest developments.

Meanwhile, recent XpertHR guest blogger Kevin J Ball presents his own very interesting take on one potential theory regarding the reasons for Mr Bannatyne’s interpretation of the Equality Act 2010.

Update 7 (18 October 2010): Mr Bannatyne has marked one of my tweets as a favourite. This was a retweet of a recent posting from XpertHR’s HRdailyquestion Twitter feed, which posts links to a different frequently asked question (FAQ) on employment law each day. The employment law FAQ that would appear to have interested Mr Bannatyne is as follows: Does the Equality Act 2010 outlaw pay secrecy clauses? This concerns s.77 of the Equality Act 2010, Mr Bannatyne’s interpretation of which was addressed in Darren Newman’s guest blog post for XpertHR. Further details here.

Update 8 (21 October 2010): “Bannatynegate” has received (as far as I’m aware) its first mention in print media today, with a paragraph in Hugh Muir’s Diary column. Readers of the Guardian’s print edition can find it on page 35 of today’s paper.

Darren Newman: Dragons’ Den’s Duncan Bannatyne, the Daily Mail, the Equality Act 2010 & Me

So I seem to be having a row with Duncan Bannatyne. This rather surprising turn of events was prompted when I followed a link to an article he had written on the Equality Act 2010 in Monday’s Daily Mail. The Article was headed thus: “As office jokes are outlawed and everyone made a victim… What on earth made a Tory-led Government enact Labour’s most lunatic legislation?” It continued in that vein for just over a thousand words.

All good knockabout stuff, you might think. And heavens, it’s not as if I would expect to agree with opinions expressed in the Daily Mail. But something about the article really got to me. Not only did it complain about the general thrust and scope of the Equality Act 2010, but it also made some claims about its content that were just wrong. Not hyperbolic. Not controversial. Not glossing over the finer detail. Just wrong. 

Pre-Twitter I’d have fumed alone (actually, pre-Twitter I’d never have read the article). However in these ultra-connected days, Mr Bannatyne’s website led me straight to his Twitter account and before I knew it I was pointing out one of his errors in just under 140 characters. I know, I know. I do need to get out more, but it’s not as if it was going to take up much of my time.

The error I focused on (there were several) was his assertion that ‘Employers are also no longer allowed to keep an individual’s pay a secret from other employees’. In the article he complains about the damage that will be done if employers have to tell employees what they are paying others in similar jobs. Of course, the Act does not contain any such provision. Nowhere in the Act does it even suggest that an employer has to disclose anything to employees about how much other employees are paid. Instead, the Act protects employees from victimisation if they either disclose their own pay to others or ask others to disclose their pay to them where the purpose of such disclosure is to discover whether the pay is discriminatory (see s.77 of the Act). The provision is entirely about employees choosing to disclose their own details. It has nothing whatsoever to do with employers making a disclosure.

As ever with discrimination law, we need to be a bit careful here. There may be circumstances in which an employer will have to disclose the details of what another employee is paid. In an actual equal pay claim for example, the employer will usually, at some stage, need to disclose the pay of the comparator. But that is not new and is clearly not the sort of situation that the article envisages. My key point stands. The Equality Act 2010 simply does not require an employer to disclose information about the pay of individuals. In so far as Mr Bannatyne suggests otherwise he is just plain wrong. That is not a matter of opinion or interpretation. He’s wrong, plain and simple.

To be charitable, this is not entirely Mr Bannatyne’s fault. Neither this Government nor the previous one has been completely blameless for the misunderstandings that have arisen in relation to the Equality Act 2010. Politicians have often sought to play up the effect of the legislation and downplay the fact that the vast bulk of the Act merely tidies up and consolidates existing law. I’ve lost count of the number of times I’ve read that ‘pay secrecy clauses’ are to be banned. It’s easier, after all, to write that than to try to explain what s.77 actually says. Also, general points are often made about the need for pay transparency that give the impression that the Act goes much further than it actually does. I stress that my point is not about whether pay transparency is a good thing or a bad thing; my point is that the provisions of the Equality Act 2010 in that area are very limited and specific but have been talked up somewhat by politicians and, frankly, some campaigners. The result of this is that people like Mr Bannatyne first of all get the wrong end of the stick and then run away with it.

Be that as it may. In the spirit of ‘where there is error, may I bring truth’ I sent off my tweet and expected to hear no more about it. Clearly, however, Mr B was at a bit of a loose end and he (somewhat to my surprise) took the trouble to reply, saying that he thought that his interpretation was correct and would be ‘tested by law’. Crikey. Since I had his attention I ventured to suggest that he had also misunderstood the way in which the burden of proof operates in discrimination cases, giving the impression that the employer was ‘guilty until proved innocent’. Well if you read it you can see that from there on in, the conversation went downhill slightly. Mr Bannatyne expressed himself in somewhat intemperate terms and at one point accused me of claiming that only I alone understood the Equality Act 2010.

This seemed an odd accusation. I certainly don’t claim that my understanding of the Act is unique – far from it. Mine is not a maverick voice railing against Mr B’s sound common sense.  I’m pretty confident that every other lawyer who has even glanced at s.77 will agree with me and conclude that what Mr Bannatyne said about it was wrong. I’d be happy to hear any arguments to the contrary, but I would expect a reasoned argument rather than the bluster that Mr Bannatyne has resorted to.

I know this is all very trivial. As Stephen Fry has pointed out, it’s called ‘Twitter’ not ‘heavy debate’. But I wouldn’t be going on about this if I didn’t think that there was actually a serious point at stake.

The Equality Act 2010 is important. But it is also complicated, and its impact can easily be misunderstood or distorted for political purposes. Many of us – lawyers, HR professionals, and journalists – have spent the past year trying to get to grips with what the Act says and what changes are being introduced. We have put considerable care and effort into this so that we can advise people on just what it means, or where the areas of uncertainty are. Writing well and accurately about the Act is a painstaking process and not at all easy – and I know many colleagues have worked hard to ensure that the advice and information they have given is useful and accurate.

Then along comes Mr B with his contribution to the debate – in which almost everything he says about the Equality Act 2010 is wrong, but expressed with supreme confidence. The article also shows an unmistakeable contempt for the misguided souls who have foisted this pernicious Act on businesses struggling to compete in a global downturn. However, by not allowing his ignorance of the subject to temper in any way the strength of his opinion, he has actually done a disservice to those whose side he claims to be on. It is articles like this which contribute to the climate of fear in which small businesses now approach employment law. Employers think that they can’t make any management decisions without taking legal advice. Employees think that they can receive thousands of pounds in compensation for every perceived slight they endure. Those who peddle these delusions then roundly condemn the laws that actually exist only in their own imaginations. I can’t demonstrate that this avalanche of misinformation actually harms the economy – but it can hardly help.

If Mr Bannatyne cared about the pressures on employers, he’d be glad to be proved wrong about what the Equality Act 2010 says and keen to spread the good news that the law is not quite the ass that he thought it was. What are the odds do you think?

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9 Responses to Darren Newman: Dragons’ Den’s Duncan Bannatyne, the Daily Mail, the Equality Act 2010 & Me

  1. John Read
    John Read 5 October 2010 at 11:25 am #

    I couldn’t agree more. The Equality Act throws up a number of interesting debates, such as the increased burden on employers, and the overarching question of whether or not the Government should even legislate on discrimination matters at all (from a theoretical perspective of course). But employers need clear and straightforward help in ensuring that they run their businesses lawfully, rather than remarkably ill-informed articles (like Duncan’s – whoever wrote it) that scare them.

    To pick up on a few points in Duncan’s article:

    The onus is on the employer to prove this is NOT the case. The employer is guilty until proven innocent. This is just ludicrous.

    Although Darren has noted this on Twitter, it’s worth repeating that this statement is completely, unarguably wrong. Everyone with a basic knowledge of discrimination law knows that if an employee cannot prove facts from which a tribunal could conclude that the employer has committed unlawful discrimination (i.e. establish a prima facie case), then the burden of proof does not shift to the employer, and the employer does not need to provide a non-discriminatory explanation for the treatment complained of. Discrimination law has been this way for many years.

    Claims of discrimination on the grounds of sexuality or gender are popular with those playing the system because there is no cap to the compensation on offer.

    There’s no cap on the compensation that can be awarded for discrimination on any of the protected characteristics. The suggestion that people who “play the system” are more likely to bring claims for sex and sexual orientation discrimination is dangerously close to suggesting that people who bring claims for sex and sexual orientation discrimination are likely to be playing the system, rather than bringing genuine claims.

    But nobody else stands to win in the long run.

    I disagree. Some of the people who most obviously stand to win are disabled employees who, as a result of the House of Lords decision in Lewisham v Malcolm would have found it impossible to bring successful claims for disability-related discrimination, which has now been replaced by “discrimination arising from disability”. Given that Duncan states elsewhere in the article that “people must be able to come to work knowing that they won’t be harassed because of…health issues or disability”, presumably he welcomes this development.

    Take the idea of Third-Party Harassment. People have called it the end of the office joke. I have to admit it’s given me a sense of humour failure. It means that if someone takes offence at a joke or banter in the office – even if it’s not aimed at them or anything to do with them – they can sue the employer.

    I’m going to blog on the Daily Mail’s ludicrous headline “Death of the Office Joke” separately, but the Act means no such thing. What it does (or will) result in is the death of discriminatory jokes about protected characteristics. There is a serious debate to be had about whether or not the Government should be legislating against offensive conduct per se, where the complainant does not have the protected characteristic(s) in question, but it’s disingenuous just to talk about office jokes generally. The Act is concerned with discriminatory harassment, not light-hearted banter that has nothing to do with protected characteristics.

    Spurious, trumped-up claims will have to be given the same regard, time and expertise as the genuine.

    From my time in practice as a lawyer, this isn’t true. Employers clearly don’t spend the same amount of time and money on all claims irrespective of their merit, and there are rules regarding how entirely unmeritorious claims, or those that have little reasonable prospect of success, can be dealt with.

    Thirty years ago, if I walked in on an employee taking money from my till I could fire them. Today, if I found myself in the same situation, I would have to instigate a disciplinary hearing and if the employee didn’t like the conclusions they could take me to tribunal.

    Yes, and you can still fire them provided you have grounds to do so. And if you do it fairly, they won’t win. And if the claim is completely spurious, you’ll probably get it struck out before it even reaches a full hearing. Elsewhere in the article Duncan argues that “people should be protected”. Well, that’s what giving employees the right to claim unfair dismissal and discrimination achieves. It’s incongruous to champion employees’ right to work in a non-discriminatory workplace, yet complain about having to employ an HR function to ensure that actually happens in yours.

  2. Rick 5 October 2010 at 12:49 pm #

    Great piece Darren.

    My comments here:

    http://flipchartfairytales.wordpress.com/2010/10/05/fear-of-employment-law-damages-business/

  3. cesare urban 5 October 2010 at 5:23 pm #

    As a minor participant in yesterday’s twitter spat with Duncan Bannatyne, I have been watching this with interest. I don’t have much to add to Darren’s great article together with the supporting comments posted by John Read and Rick. However I would like to make a couple of observations:

    Gipsies [sic] and travellers will receive specially favourable treatment as a form of ‘affirm­ative action’, to make up for the ‘many social-economic disadvantages they face’.

    As I’m sure that Mr Bannatyne is aware, section 159 Of the Equality Act dealing with positive action in recruitment and promotion, is not in effect yet. Whether it will ever be in effect is a matter of opinion at this stage, so I don’t see the need for scaremongering businesses by presenting it as a fait accompli. Be that as it may, why single out ‘gipsies [sic] and travellers’ to make the point? Set in the context of Mr Bannatyne’s article, criticising the potential requirement for positive action by using the Roma and travelling community as a vehicle for his point reinforces negative stereotypes and contributes to perpetuating the current situation of this community being the recipient of the last bastion of adverse ‘acceptable’ unlawful discrimination in the UK.

    Thirty years ago, if I walked in on an employee taking money from my till I could fire them. Today, if I found myself in the same situation, I would have to instigate a disciplinary hearing and if the employee didn’t like the conclusions they could take me to tribunal.

    My business memory goes back thirty years too. However, it seems that my recollections differ from Mr Bannatyne’s. The principle of the right not to be unfairly dismissed was introduced by the Donovan Report in 1968 and enshrined in legislation by both Conservative and Labour governments in the 1970s (the Industrial Relations Act 1971 and the Trade Union and Labour Relations Act 1974). ACAS produced their original Code – Disciplinary Pracice and Procedures in 1977 and paragraph 11 of that Code summed up the essence of fairness: “Before a decision is made or imposed the individual should be interviewed and given the opportunity to state his or her case and should be advised of any rights under the procedure, including the right to be accompanied”.

    Perhaps I was just working for a decent employer thirty years ago?

  4. Darren Newman 6 October 2010 at 7:44 am #

    Really good comments here and I’m very grateful for the support I’ve received generally over the last couple of days.

    I suspect Mr Bannatyne has now moved on in his mind and is unlikely to comment further – but its been great to be involved in exploding some of the myths surrounding the Equality Act.

    In the same spirit, a great blog piece by @MrsMarkleham nails some similar errors made by Simon Jenkins on the Today programme: http://mrsmarkleham.wordpress.com/2010/10/01/a-bad-start-the-today-programme-debacle/

    If we keep plugging away when lazy journalism misrepresents our subject, we’ll get through eventually!

  5. Shilpa Unalkat 6 October 2010 at 8:27 pm #

    The ‘knee jerk’ commentary from Mr Bannatyne may be a natural reaction of some perplexed employers who may not have spent the requisite time to really understand what the new legislation is intended to actually protect. Your article is a welcomed, educative piece for us all on the meaning and implications of parts of the Equality Act.

  6. Doug Shaw 8 October 2010 at 10:08 am #

    Having spent the first half of this week on the English Riviera working with a fantastic group of clients, I’m (typically) a little late to this interesting ding dong.

    As an aside, I’ve always been disappointed that UK plc is not more open about pay. When I was in the world of employment I always told folk what my pay was when they asked. Why shouldn’t I? I think that secrecy over pay is a major control lever which employers pull on regularly….to keep folk in line.

    And then they often ask pay related questions in engagement surveys and wonder why they get crap answers. Lack of info = no informed decision, or put another way the input’s in gobbledegook the output’s in jibberish.

    What is to be gained by keeping pay a secret? I believe that work would be a much better place if everyone knew what their colleagues earned. It would probably be a difficult thing to come to terms with on day one but I believe it would be a liberating thing. What might be even more interesting would be to let teams control a budget which includes the pay of their manager. Turn the model upside down and see how folk interpret value then?

    These days I publish rates on our website so that people know what to expect before they engage us.

    Sorry for meandering a little (cough), and thanks for the very useful learning.

  7. Rob Young 12 October 2010 at 9:28 pm #

    How many people seriously welcome yet another piece of employer-restrictive legislation? Not many I suspect. More work for HR/Legal, more cost for businesses and not much value-add. More compensation-seeking mal-contents to contend with and the “kangeroo-Tribunals”!

  8. Michael Carty 14 October 2010 at 5:02 pm #

    I’m posting this here, rather than as an update in the main body text of this post, as the situation described below could yet be subject to change.

    Yesterday morning (Wednesday 13 October 2010), I found that the text of Mr Bannatyne’s Telegraph article was also published to his own blog (http://www.duncanbannatyne.co.uk/equality-act-will-damage-honest-employers/). I posted the following comment at 7.30am yesterday, and as of the time of writing – almost 36 hours later – it has yet to be “approved” by Mr Bannatyne’s moderators to appear. Here is my comment:

    Hi Duncan

    It is very interesting to see your views on the Equality Act 2010 set out here.

    My colleague John Read published a blog post yesterday, responding to the version of this article that appeared in the Daily Telegraph: http://www.xperthr.co.uk/blogs/employment-intelligence/2010/10/bannatyne-wades-in-again-on-pe.html

    It would be great if you were able to take a look at John’s post, and respond to some of the points raised there.

    The offer also remains open for you to respond to our earlier blog post relating to the article on the Equality Act 2010 which you contributed to the Daily Mail last week: http://www.xperthr.co.uk/blogs/employment-intelligence/2010/10/darren-newman-dragons-dens-dun.html

    Kind regards

    Michael

  9. Rodney Arnold 15 October 2010 at 12:11 pm #

    I have been an employer of over 40 years starting with nothing. I would have to comment that it is my view that since the labour party introduced the magnitude of employment legislation they have, the situation regarding the employment law and tribunals is that the whole procedure is biased against the employer and the employee sees the system as a method for easy money. The legislation introduced has also resulted in the proliferation of employment lawyers, many of questionable ability which you do not discover until you are in court. After forty years of employing people I now believe, because of all the extra legislation, there is no longer any enjoyment in employing people whilst also trying to drive a business which exports 80% of what it produces to may Continents including Russia, China and South America, having to spend months of every year travelling with all the hassle that running a business entails.

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