Lord Leggatt is a judicial hero. And, as we now know, he understands that somethings really are too long; didn’t read. Also: creative conflict at its best.
Short thought: Smarter and better minds than mine have crawled all over the Uber judgment, handed down by the Supreme Court on Friday. It’s justifiably been the centre of attention in the employment law world: although obviously deriving from a specific set of facts, it nonetheless lays down a clear line as to whether companies can seek to dictate through contract terms whether their staff are workers – to whom they owe at least some employment rights – or independent contractors, to whom they owe nothing but payment for services rendered.
The tl;dr version: they can’t. It’s a question of statutory interpretation, not pure contract law. And it’s the reality of the relationship, not the words on the page, which make the difference.
Big news. Gig economy “employers” will have been poring over their business models and contracts over the weekend. Many, I anticipate, will find themselves in (for them) uncomfortable territory. I’m of the view (for what it’s worth) that the Supreme Court has gone the right way on this. That said, what will change straight away? Perhaps not much. Individual workers may need themselves to sue, given that the government seems notably uninterested in doing anything about it themselves. (The post of Director of Labour Market Enforcement, occupied on an interim basis by Matthew Taylor, falls vacant at the end of this week. He offered to stay in the job for nothing. He was turned down. Apparently none of the candidates were suitable. So clearly this wasn’t a high priority.) And as we’ve seen, the backlog in the employment tribunals, largely thanks also to government policy, is vast.
Among the mass of commentary, Jason Braier (unsurprisingly – his #ukemplaw Twitter form is near-unrivalled) has one of the best explanations. Fifty-plus tweets, but worth following through all the way. Although a pupil at our chambers, Ian Browne, managed to sum the whole thing up beautifully in two paragraphs:
But it’s not Jason’s (or indeed Ian’s) splendid work that I want to point to. No; it’s the magisterial judgment itself – the work of Lord Leggatt, a relatively recent addition to the UKSC. Friends and colleagues who’ve appeared before him are fans; even those he’s monstered with his questions or found against. I haven’t risen to those heights. But he was already one of my judicial heroes thanks to his judgment in the case of Gestmin v Credit Suisse, which I wrote about recently as the starting-point for the acceptance by the English courts (the Commercial Court, at least) that the fragility of memory was a critical consideration in how justice could be delivered.
Well, Lord Leggatt has done it again. We’ve all done that thing where you turn to the back of a judgment to find out the outcome, only to find there are 50 paragraphs of obiter addenda to wade back through. Not so here. In a glorious judicial tl;dr of his own, and perhaps in the knowledge that many reading a judgment with such significance for working people won’t be lawyers, Lord Leggatt gives the outcome upfront in paragraph 2, in just 39 words. Bless the man.
Someone is right on the internet: “Why can’t we just get along?” Because sometimes, just sometimes, we need to argue.
Argument is not, in itself, a bad thing. Debate and disagreement are like mistakes. Without them, you can’t learn, or grow, or find out you’re wrong. And if you can’t do those, there’s no hope for you – and no point in listening to you.
In this bit of writing, Ian Leslie calls on two examples. The first is an interview between noted right-wing poster-boy Jordan Peterson and Helen Lewis. Lewis is a great reporter, but this interview caused lots of people to accuse her of malice or unfairness, or (grow up, people) of some kind of “woke agenda”, in how she treated Peterson. I can’t see it. As Leslie suggests, she seems to be engaging in – to British eyes – a perfectly normal piece of searching and probing, but by no means unfair or aggressive, interviewing. To which Peterson seems to respond in a notably thin-skinned, take-it-personally manner. Odd, for someone whose shtick seems to be all about people toughing up, taking responsibility and stopping with the whining.
But it’s the second I really loved. You’ll have to scroll all the way down for it, but he describes a row (apparently well-known to Beatles fans, which I’m not particularly) between Paul McCartney and George Harrison during a rehearsal for a TV performance. Apparently it’s cited as an example of why the Beatles split, but Leslie instead sees it as an example of how conflict between collaborating artists can take their creativity to still loftier heights:
Maybe this won’t be interesting to anyone who isn’t a Beatles nerd but even if you’re not, isn’t it incredible have a raw and unfiltered record of one of the all-time great creative collaborations, as it happens – tensions, irritations, disagreements and all? If it is a little boring, that’s interesting too – it shows how magic can grow out of a long series of banal interactions. Anyway – it’s during this extended argument that Paul coins a favourite quote of mine, applicable to any creative process: “It’s complicated now. If we can get it simpler, and then complicate it where it needs to be complicated.” Whether you’re stuck on a song, an essay or a coding project, this is great advice: strip it back to its simplest form and then let the complications force their way in. (A little later, Paul rephrases it: “Let’s get the confusion unconfused, and then confuse it.”)
“Get the confusion unconfused, and then confuse it.” Wonderful. My new theme song.
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