Praise for Lady Hale's 'common sense view' on ministers of religion

Laurence Anstis, an employment judge in Birmingham and associate at Boyes Turner, has praised Lady Hale for her stance on the employment status of ministers of religion. Lady Hale was the only dissenter last week when four Supreme Court justices ruled that a Methodist minister was not an employee.

Anstis told delegates at SJ Live yesterday she was not just the only woman in the court, but the only one who had "spent a significant period of time as an employee" as the others were previously self-employed barristers.

Lady Hale was the "only one in the Supreme Court with any real employment law background" and took "a less legalistic and more common sense view", Anstis said.

Delivering the leading judgment in President of the Methodist Conference v Preston [2013] UKSC 29, Lord Sumption said the "fundamentally spiritual purpose of the functions of a minister of religion" should not be ignored.

Anstis said Lord Sumption had taken a "particularly strict legalistic view", based on precedent - becoming a trend at the Supreme Court.

However, he said that in another Supreme Court ruling earlier this year on harassment, Lord Sumption had "invented the concept of rationality".

Giving the leading judgment in Hayes v Willoughby [2013] UKSC 17, Lord Sumption said people accused of harassment, who claimed under the Protection from Harassment Act 1997 that their behaviour was aimed at 'preventing or detecting a crime', must act rationally.

Anstis said the concept of rationality appeared "nowhere in the previous case law on protection from harassment".

On whistleblowing, Anstis said changes to the law, implemented under the Enterprise and Regulatory Reform Act on 25 June this year, meant that employees would have to show they acted in the public interest, rather than in good faith.

"It only needs the subjective belief of the person that the disclosure is in the public interest, and employment tribunals might not have enough material to decide on that," Anstis said.

He said he was surprised that the government had decided to go ahead with equal pay audits under the ERR Act, though there was no implementation date yet.

"They could be enormously burdensome for employers, so it's a surprise to see this from a government committed to deregulation," Anstis said.

Under the Act, tribunals must impose compulsory audits on firms where there is a successful equal pay or sex discrimination claim against them.

"It is interesting to see how they could be used tactically by employees."

On the government's 'rights for shares' employee shareowner scheme, under section 31 of the Growth and Infrastructure Act 2013, Anstis said "like birdwatchers, employment lawyers should put up an alert when they first see one".

He predicted that the government's cap on unfair dismissal awards, due to come into force this summer, could bring up "all sorts of horrors regarding people with variable wages and commissions" and lead to difficult disputes about how annual salary was calculated.

Anstis added that when employment tribunal fees are introduced on 29 July this year, he expected payments to be handled centrally and understood the intention was for them to be made online.

"This could have an impact on access to justice not only for older people, but those in rural areas, such as the highlands and islands of Scotland.

"The fees are high, bearing in mind there are quite a lot of wages' claims for relatively small amounts of money, not always involving lawyers. People deserve to be paid their wages."