Archive for March, 2010

The Coventry Train

Friday, March 26th, 2010

If you have ever been treated like a second class citizen, you have been discriminated against and in The United Kingdom in 2010, no-one should feel like that.  We have Equal Rights, Equal Opportunities and The Human Rights Act.  We are all human, we encourage humane behaviour, we celebrate cultural, ethnic and other forms of diversity, yet we still encounter discrimination. Why? How?  What constitutes a second class ticket on a hostile train to Coventry?  (Do you recall the expression being sent to Coventry, I think it was a Union term for those who disagreed with strike action).

In the past week a member of the Bedposts forum, a fellow accommodation provider, has made headline news because she turned away a late middle aged male gay couple, who had previously booked bed and breakfast at her establishment.  Quite rightly, the nation and the greater proportion of the members of this forum were shocked that this had occurred and leaving aside personal opinion for the moment, it is illegal under the Equality Act 2006  and specifically The Equality Act (Sexual Orientation) Regulations 2007 which outlaw discrimination against lesbian, gay and bisexual people by businesses and service providers.  Although Regulation 14 provides an exception for organisations relating to religion and belief, that is those whose purpose is to practise a religion or belief, to advance a religion or belief or to teach the principles of a religion or belief. It extends to those who act on behalf or under the auspices of such an organisation. It does not however extend the exception to organisations whose sole or main purpose is commercial, or those who act under a contract with and on behalf of a public authority.

It seems clear to me therefore that as a Guest House/Hotel/B&B does not exist to practise, advance or teach a religion, it does not matter that an accommodation provider holds certain religious beliefs, they must not in Law, turn anyone away for reasons defined as prohibited discrimination.

Gay Rights Activists fought hard battles for the change in the Law and all credit to them for their courage and tenacity.  It is a pity that Society was such that the fight was necessary.

I deplore discrimination in any of its guises and intervention with protective legislation was the necessary course of action. Although as an accommodation provider, it makes no difference to me whether the legislation is in place or not.  Guests are welcome as long as they respect my property and the private lives of guests are just that, private.

The situation that arose whereby a gay couple were turned away at the door, having made a prior booking, unbeknown to them, with an accommodation provider whose religious beliefs mean that for her she must follow God’s Will by not condoning single sex relationships, was clearly unacceptable.  The embarrassment and inconvenience caused to the two gentlemen in question should not have happened.  For some people the answer is clear, a B&B operating on the basis of religious conviction should not be in business, and for some the answer will be that she should have defined and concentrated her business so that she advertised especially for Christians, in which case guests would know what to expect before booking.  I understand that there is at least one Gay only Hotel in the UK operating in this way.  On the other hand some people might see this as discrimination of another kind.

Discrimination has tangible and intangible consequences that can be extreme and it is right that Parliament should try to prevent it.  The intangible consequences include at a national level civil unrest, at a local level, disharmony within communities and at a personal level, issues such as disadvantage in the job market and psychological damage.  No right minded people should therefore argue in favour of removing protective legislation, but is the law too cumbersome to deal with all of the issues properly?

Let us take a few moments to look at who might find themselves with second class tickets on a second class train to Coventry.   Obviously our thoughts turn to the disabled and people from other countries with different cultures, but there are other examples too, some much less serious, but nevertheless equally inappropriate.

I am below 5 ft in height and I recall one interview that I had, before the days of Equal Opportunities, when I was asked if someone had written my job application because it was written with stature. I was not offered the job.  I was quite young and  very upset at the suggestion that I had not written my own application.  Later I came to recognise that it was fueled by the “does she take sugar? – Little person, small brain” attitude.  For a while I was very grateful for Equal Opportunities legislation, but we have all come to know of many examples where the tick box exercise does not necessarily produce the right candidate.

Should the followers of the Christian faith maintain the right to hold their views, even though they are out of step with the rest of us.  I would say that they must be allowed to hold their own views, or we run the risk of turning the tables and discriminating against them.  How can we reconcile permitting views that we might think are wrong or harmful in a Society where right minded people deplore discrimination?

I would hope that all right minded members of society would be prepared to say “each to his own, as long as you don’t offend my view, I won’t offend yours”.

When the Law tries to correct a wrong, it creates strict legislation, but this gets us in a muddle sometimes.  In an earlier blog below, I talked about how the Law tries to to create black and white in shades of grey, or it often avoids the grey altogether, and I also observed that when the Law extends a right in one area, it inevitably removes it in another.  In order to avoid discrimination are we by default legally prevented in some circumstances from celebrating diversity?

The hotel industry is vast and there is room for hotels that cater for every kind of business.  We accept pets, and we make it very clear that we do, as asthmatics would wish to know before booking. We do not consider ourselves to be discriminating against asthmatics and we hope no-one would view it that way.  We are simply providing a service for pet owners, who are not welcome in every establishment.   A hotel that specialises in catering specifically for the disabled provides a very valuable service, many of us are constrained by the designs of older buildings and unable to do as much as we would like, for example, to accommodate wheelchairs.

Likewise, should Christians be able to accommodate people who either only wish to stay in Christians homes or don’t care either way.  Would the gay couple have been spared embarrassment and inconvenience if this information had been permitted in the public domain, or would you deny Christians the right to offer accommodation for Christians?

Personally I would not wish to book into any B&B that operates with religion at its heart and equally I would not try to book at an establishment catering especially for Gays. I think it is right that some accommodation providers cater for particular groups of society, but perhaps they should not be allowed to operate exclusively.  What do you think?   There is plenty of scope for choice when it comes to booking accommodation.

Is the way forward for us all to say, live and let live, tell me as a business what you provide, don’t be afraid to tell me openly, it should not be against the law to say who we are and what we offer, then I won’t be embarrassed and neither will you, and hopefully we can all live in harmony and travel side by side with first class tickets in our pockets.

The Law in my view is absolute, whether we agree with it or not, but is the Law absolutely clear?  I have read and re-read the legislation and I think that legally the only way you can specialise as an accommodation provider in one of the areas protected by anti-discrimination legislation is if the provision of accommodation is secondary, for example, if you were running faith courses and providing overnight accommodation.  As I interpret the law at present, the moment you open your doors to the paying public and the primary purpose is commercial profit, you are not allowed to exclude anyone. If I have interpreted this correctly is there a better way, or do you think that this would be a step backwards towards promoting discrimination?  Is there room for a minor amendment to the Law with a view to creating more not less harmony amongst us?  Equality Law ultimately aims to prevent division.

If there are any lawyers amongst us willing to comment on any of the above points, I would be very interested, and I would be interested in your thoughts generally about the risk of turning tables, and your comments on how we can work together to overcome the danger of discrimination without creating new underdogs.

Apart from a general loathing of discrimination, I confess myself uncertain as to how very  wide differences of opinion, where common ground is clearly not possible, should be treated, but I would like to close by saying that in general I believe that right minded people who have been discriminated against and know how it feels, would not wish to, in turn discriminate against others.

I hope that this blog has not offended anyone, it should hopefully be clear from what I say that in my eyes everyone is equal.

Carol

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When is Grey a Shade too Unclear?

Tuesday, March 16th, 2010

Now that you have had chance to take a look at a couple of issues that I think worth mentioning, I am wondering if anyone has a burning issue that they would like to share. You can post your problem here, or you can write to me personally, and if you prefer, I will talk about your law matter without revealing your identity.

How many of us believe ourselves to be in the right, but are frustrated in our attempts to exercise our rights.  Several of us, probably.  Have you ever considered why that is?   It is a simple fact that every time the rights of one person are extended, the rights of another are reduced.

It is my right to privacy, and I do not see the need for CCTV surveillance at the level it has reached today.  It is your right to be protected.

I like to see the night sky and I do not see the need for very bright street lighting that hides the stars.  Again it is your right to be protected.

I do not smoke and I am happy at the new legislation under Smokefree England, you may feel that it has infringed your rights.

Sometimes our Law is changed in favour of the group that shouts the loudest, it may not always reflect the will of the silent majority.

Sometimes I am in the majority, sometimes I am in the minority.

I recall a problem that was faced by some village and church halls nearly a decade ago, when under the newly introduced Disability Discrimination Act, the committees lowered the emergency opening bars on their exit doors, only to find that pre-school aged children attending the playgroups who routinely hired the halls, were able to escape.  How do you reconcile the right of a disabled person to escape unaided in the event of fire, against the right of a toddler not to be able to run out of the hall in front of a passing car?  You can’t.

Do you have an example of shifting balances of rights that has affected you personally, would you like to air it?

These difficult situations come about largely because it is seldom possible to frame rules in such a way that not every scenario is either included or excluded as appropriate, although the Parliamentary Draughtsmen, who are normally made up of the country’s most senior lawyers, do as a rule, do their best to import clarity into legislation.  Nevertheless, there will always be some situations that arise that fall to the Courts to determine.  Inevitably inclusion of situations that are just plain silly  if included, will lead yet again to the Law being called an ass.  Whilst these situations are often recognised by legal commentators fairly soon after the introduction of new Statutes, quite often the area remains grey for a very long time.

Where situations don’t quite fit the new legislation, whether they are included or not, they often fall to be decided by the Courts as either being, or not being within the scope of the Act.   When clarification has ended up being long overdue, it may perhaps be because the situation already envisaged by the legal commentators has not arisen for months or even years, or perhaps because it has arisen but neither side is sure which way the Court will view the matter, and neither wants to incur the inherent costs of losing.  When the latter occurs, all too often, a grudging compromise is reached, or the side with the most funds at his/her disposal is able to bully the other side into financial submission.

Occasionally Parliament will set aside time to amend anomalies in a Statute to provide clarity, but in most cases the scenario that falls outside the box will be seen by Parliament as “not likely to occur in sufficient frequency to justify Parliamentary time and the public purse being dipped into”, so nothing is done to resolve the grey area.

The example I gave above of the difficulty faced by village and church halls committees in deciding whether to lower their emergency door bars is typical of the situation that many of us find ourselves in.  I suspect that most halls committees followed the legislation set out in DDA, because that was what had become enshrined in law, whereas, the alternative was not. I  should add here that DDA does provide for exemption if unpractical, but that is largely geared towards the fabric of the building where the building does not allow for structural alteration in order to comply, or where the costs would outweigh the benefits to a substantial degree.

There are of course lots of other situations where you might know you are in the right, but someone will force you to back down, and our roads are one such example.  It might be our right of way, but if pulling out just because it is our right of way, where someone else is proceeding when it is not their right of way is likely to result in an accident, we are hardly likely to choose to exercise our right.

The Law prohibits murder (as it should) but it cannot prevent murder from taking place.  There will always be times when no amount of legislation will prevent a particular occurrence although it goes without saying that we all have the right not to be killed unlawfully.

Self Defence is a particularly interesting topic.  The law that underpins the right to use self defence places those that resort to it in a vulnerable position.  The test if another person is injured, or dies, as a result of you defending yourself against them is “ was the level of force used in self defence appropriate to the circumstances that the person who used self defence believed them to be?”

You simply cannot pinpoint the level of self defence required in the heat of the moment,  but you may only use sufficient force to defend yourself to the extent that is required.  The moment you cross that point, you become the aggressor.  In other words if you use more force than is absolutely necessary, you can no longer rely on a defence of self defence.  Most people would agree that the dividing line at its very centre is a shade of grey.  It will fall to a court to try to determine black or white (guilty or not guilty) in the centre of the grey.

Have you ever sought advice from a Solicitor only to be told that it was a grey area?  If so, what was the grey area concerning, and why was it a shade too grey to be black or white?  I would love to hear about it if I can persuade you to tell me.

Carol

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Red Tape – is it a red rag?

Friday, March 12th, 2010

On the Bedposts forum we have been discussing the need to use our votes in the forthcoming General Election for the party that has the best interests of this important economic sector at heart, this statement has been put together through a joint effort by some of our Members.

Did you know that the tourism industry is around the fifth largest of the UK’s wealth producing sectors. Small and medium-sized enterprises (SMEs) account for more than half of the employment (58.2 per cent) and turnover (52.4 per cent) in the UK, so it follows that we make up a very significant proportion of the tourist industry. With the Olympic Games on the horizon, the Government of the day will need to be seen to support the accommodation industry as a whole, and the small provider in particular, if visitors are to leave, after the games, with the best possible impression of Britain as a destination of best choice.

We share the view that recent intensification of the pace of introducing new legislation in our sector has had a deep and lasting detrimental effect. In the last decade we have been bombarded by flawed new regulations that have proved to be inappropriate, disproportionately time-consuming and expensive and/or enforced with unnecessary aggression.

Most of us operate small B&Bs, Guest Houses, and Self Catering Units in or adjacent to our homes, either single-handedly or with little help from others.  We do not enjoy the economies of scale enjoyed by larger operators but we work much closer to the ‘coal-face‘ and are personally involved in every single aspect of our businesses in a way that is impossible for larger establishments. Nevertheless, risks and threats to guests are assessed without regard to these differences, which are judged as the same in our premises as in larger hotel and holiday resort establishments where owners and managers delegate responsibility down several tiers for dozens, or even hundreds, of visitors every day.

We have to find, within limited profits and significant time constraints, funds for sophisticated systems, compliance procedures, audits, statements, certifications, tests, licenses, alarms and protections in a never ending blizzard.  The waste of time, energy and money, not to mention the unnecessary stress, is astonishing. Nothing is added to the guest experience or well-being; in fact much is taken away. We are finding it increasingly difficult to maintain the personal service, warm and friendly atmospheres and unique ambience for which the British visitor industry has, rightly, been famous.

In order to assist us in deciding who each of us, as individuals, will vote for, we are writing to a number of parliamentary candidates asking them to tell us what their party will do, if elected, to :-

Reverse the burden of red tape for small businesses;

Encourage tourism development generally;

Avoid knee-jerk reactions that lead to flawed and populist legislation

Consider the impact that legislation has on all sections of the community in order to avoid the unexpected and undesirable consequences (more joined-up thinking, please);

Treat SMEs as individual business owners of consequence

Ensure that only proportionate interpretation is used when enshrining EU directives into British law.

If you would like to support us, please leave a comment.

If you are a small business in another industry that you feel is equally hamstrung, please tell us what difficulties you too face.

Do you think, accepting that the economy is the major issue facing whichever party leads the government from May onwards, that lifting the unnecessary red tape burden on small and medium sized businesses will enable them to prosper, take on more staff and help the country to recover from our current financially depressed state?

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Every Dog Has It’s Day

Thursday, March 4th, 2010

Every Dog Has Its Day

I thought I would share with you a very funny story that happened several years ago. Our first house when we were first married was half of a large house that had been converted into two houses by the vendor and his son, who each occupied half of the property.

We bought the smaller semi and a local business bought the larger semi which came with a substantial out-house on the land.  The gable end of the out-house was about 4 ft from the dividing wall that separated our two rear gardens.  The purchaser of the property next door intended to extend and convert the out-house for business use and reside in the dwelling.

We moved in first and had already started to get our rear garden the way we wanted, and we had laid a raised flower bed along the dividing wall, with patio stones abutting the flower bed wall.  We could only see that part of the garden from the window of a little used room.

We came home from work one evening and let our dog out into the rear garden, after a short period of time when he did not come charging back in, I went to see where he was.  Imagine my horror — where we once had a dividing wall, there was no wall, where we once had a newly established raised flower bed there was a big trench, and where we once had a nice new patio, we had broken slabs, spades, buckets, muck, I think you will get the picture.

What was more distressing though was the fact that the dog had vanished, and I knew that once he was through the wall he could run straight out onto the main road that we lived on.  I called him loudly, then ran back indoors to tell my other half.  Just as we both rushed out again to go and find the dog, he appeared, looking  pleased with himself with what he thought was “the newspaper” in his mouth.  We took from him what he was holding and realised he had bought us the architect’s plans for the proposed extension next door, to this day we don’t know where he found them.  We could see from the plans that the extension had clearly been drawn so that the footings to the building would be on our property by almost a foot.

The following day we put the necessary steps in place to seek an Injunction, but we were sure there was no real cause for us to worry as we had the proof we needed, thanks to the dog, to prove that the dimensions were incorrect.  The architect admitted he had done his sums wrong, and the builders said they assumed that the two properties were owned by one person.  We received an apology, our patio and flower border and garden wall were reinstated and our dog was rewarded with a huge bone.

If someone causes or threatens harm to you or your property you should always take immediate steps to protect your interests.  Our problem was a boundary dispute, which is dealt with by the Civil Court, but if you feel that there is a threat of personal harm, or you are harmed in any way, or you feel that damage to your property was intentional you should always call the Police in the first instance.  They may advise you to speak to your Local Authority, or your Housing Association if appropriate, or they may suggest that you seek an Injunction if they feel that the matter is or might be serious, but they do not have enough evidence to warrant a criminal prosecution.  The Civil Court will award an Injunction if it decides there is a reasonable likelihood of harm.  This has the effect of protecting you where no crime has yet been committed.  An Injunction is an Order to a named person (The Respondent) not to contact the person seeking the Injunction (The Applicant) or to interfere with The Applicant’s property, as the case may be, and if the risk of harm is serious, the Injunction may be issued with a power of arrest if the Respondent ignores it.

The value of getting an Injunction with a power of arrest, if you are concerned about a threat of harm, is that whilst the police may not be able to help you in the absence of evidence that would meet the criminal test of “beyond reasonable doubt”, they will be able to help you if the Respondent ignores the Conditions of any Injunction which carries a power of arrest, the police will carry out the arrest.

If the Civil Court decides that a power of arrest is not necessary, and the Respondent ignores the Conditions of the Injunction, you can return to the Civil Court who will usually take action against the Respondent for Breach of a Court Order.

If you need an Injunction and would like to apply to the Court yourself, you can download the Court form here :

http://www.hmcourts-service.gov.uk/HMCSCourtFinder/GetForm.do

You will also need an Affidavit to accompany the Application.  The Affidavit is a Statement of the facts on which you are seeking an Injunction and a Request to the Court to grant an Injunction with the Conditions you seek, you will also need to include an explanation of why you think these Conditions are appropriate. The Affidavit must be Sworn, but it can be Sworn in front of an Officer of the Court if you take the Application along to the Court Office in person.

Filling in the Injunction Application form is very straightforward, but if you are not sure how to word your Affidavit, you might like to ask The Citizen’s Advice Bureau in the first instance.  If they think the Application might be a bit complicated, they will refer you to a Solicitor.  Remember always that if you seek an Injunction against someone and do not succeed in convincing the Court that you need an Injunction, you may be Ordered to pay your opponent’s costs in Responding to your Application.

Has anyone sought their own Injunction in person?  If you did, and you would like to share your experience on this page, I would be very interested to hear how you got on.

Carol

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