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Archive for December, 2011

Racial Harassment

RACIAL HARASSMENT

Liability of local authority: delay by employment tribunal

Employment law advisers need to be aware of the decision of the Employment Appeal Tribunal in the case of Sheffield City Council v Norouzi [2011] IRLR 897.

N, a man of Iranian origin, was employed by S as a residential social worker at a home for disturbed young people. He was subjected to abuse on racial grounds by one of the residents.

It was accepted that this conduct amounted to racial harassment for the purposes of s 3A of the Race Relations Act 1976. He complained of race discrimination to an employment tribunal.The tribunal found in favour of N and ruled that S was liable because it had not done enough to protect N. The tribunal did not give written reasons for its decision until six months later. N appealed to the EAT.

Decision 1. The tribunal’s delay in giving written reasons was not a ground of appeal.

2. In environments such as prisons, residential homes and some schools, harassment was a hazard of the job and could not easily be prevented.

3. If an employer were to be found liable for taking insufficient steps to protect an employee, then the tribunal had to focus on what action should have been taken.

4. The appellant could not raise, for the first time on appeal, the question of whether S had created a “hostile environment” by its inaction. This argument had not been taken before the tribunal.

5. The appeal was dismissed.


Health and safety: the reality

Health and safety: the reality

Those of us who provide advice on employment law in Bristol, and throughout the UK, have a duty to argue against the current trivialisation of health and safety law. The mocking of this law, described as “elf n safety”, should be compared with the horrific reality of the following recent prosecution.

Copper Alloys Ltd, a foundry company operating in Stoke on Trent, has been fined following an incident in which an employee fell into a pit of molten metal.

In May 2010 an employee of Copper Alloys, who wishes to remain anonymous, was working in the company’s foundry. He was using a long-handled tool to scrape impurities from the top of a freshly poured casting when he tripped and fell into an unfenced gap between the metal mould and the five-feet deep pit in which the mould was sited.

The molten metal in the mould had a temperature of more than 900 degrees celsius. The worker used the tool to try to stop himself falling into the pit. He landed on the edge of the mould. His arm was immersed in the molten metal. His upper legs were burned on the impurities which he had scraped from the mould.

The worker suffered severe burns to his arm and upper legs. He needed skin grafts and continues to undergo physiotherapy for restricted movement in his arm and legs. he has been unable to return to work.

The HSE investigation concluded that there was no guard railing around the edge of the mould pit and that Copper Alloys had failed to recognise the risk of workers falling into the pit.

The company was fined £8000 plus £4800 costs for a breach of Regulation 13(5) of the Workplace (Health, Safety and Welfare) Regulations 1992.

Fenton magistrates’ court, October 2011.

Regulation 13 of the 1992 Regulations states, in summary, that so far as is practicable, every tank, pit or structure where there is a risk of a person in the workplace falling into a dangerous substance in the tank, pit or structure, shall be securely covered or fenced.


Employment law advice and the Iraq War

Employment law advice and the Iraq War

Those of us who provide employment law advice in Bristol may question the relevance of the Iraq War to their practice. My view is that all lawyers should be aware of the crucial importance of the following:

 

The economic implications of the Iraq War

In 2008 Joseph Stiglitz, former Chief Economist at the World Bank, and Linda Bilmes, a leading American economist, published The Three Trillion Dollar War: the true cost of the Iraq conflict. Their book examines the true financial, economic and social consequences of the Iraq war. They conclude, in summary, that the US government’s early estimate of $50 billion for the cost of the war was underestimated by sixty times. They make the following points:

     

  • The invasion of Iraq was a terrible mistake.
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  • The decision to go to war was based on a number of false premises.
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  • The total cost to the US will be $3 trillion.
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  • The total cost to Britain will be £20 billion.
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  • Estimates of violent deaths of Iraqi citizens are disputed. They range from 100,000 to more than 150,000, with 700,000 deaths from other causes.
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  • Civilian casualties in Iraq since the invasion have been estimated at between 68,796 (Iraq Body Count) and 650,000 (Lancet October 2006). More bombs were dropped in the initial ‘shock and awe’ attack on Iraq than in the whole of the first Gulf War.
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  • The main alleged “benefit” of the War – the destruction of weapons of mass destruction – had no validity.
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  • The Iraq War has resulted in a humanitarian catastrophe.
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  • 2 million Iraqis have left their country.
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Stiglitz and Bilmes do not deal with the legality of the War. Their economic analysis confirms the apocalyptic nature of the war in human and economic terms. In the light of a humanitarian and economic disaster of this magnitude, the legal implications have less significance for those who have suffered as a direct result of the invasion of their country. The projected cost of the War can, of course, be compared with the cost of providing a nationwide network of fully staffed and resourced law centres.

It can be argued that British lawyers have an overwhelming professional duty to examine and analyse the legal aspects of the War and to express their views on its implications for the UK legal system.

For example, in 2007 a leading international lawyer, a Cambridge University professor with outstanding expertise in his field, was asked if it was true that most international lawyers thought that the invasion of Iraq was illegal. He replied that he only knew one lawyer who thought that it was legal.

The prohibition of the use of force by one state against another is one of the most fundamental principles of international law. Article 2 of the United Nations Charter states that war is unlawful. This is so basic a principle that the burden is on those seeking to show authorisation to use force, to show that it has in fact been authorised.

 

Legality of the War

First, war is illegal under international law. Second, the British government’s case for war was fatally flawed, from legal, practical and humanitarian points of view. Third, there are allegations of war crimes on the part of political leaders who planned and ordered the invasion of Iraq. If English lawyers believe, as they so often declare, in justice and the rule of law, then they have an overriding duty to speak out loudly and often against the War in Iraq and to take action in accordance with the principles of justice and the rule of law.

In terms of the legality of the War, which is not a fundamental issue in humanitarian terms, but is the most significant for lawyers, it is clear that the great majority of international lawyers – practising and academic – are of the opinion that there was no justification in law for the invasion of Iraq.

In the light of the overwhelming legal and humanitarian disaster which resulted from the War, lawyers should treat the Iraq War as their first priority.

Not all lawyers share these views. For example, recent comments by academics on the legality of the Iraq War have included the following:

     

  • Even if the War was illegal, there are few if any legal implications.
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  • The War was lawful under UK law because its legality has not been successfully challenged in any UK court.
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  • To claim that the War was a serious violation of the rule of law should not be taken at face value.
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  • The legality of the War could be tested by litigation brought by a state to the International Court of Justice. This process would be deeply affected by politics.
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  • Even if the War was illegal, this does not necessarily mean that it was a crime in itself.
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  • There is no prospect of anyone ever standing trial for the Iraq War in any national or international court.
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In response to these views, the following points should be noted:

     

  • Senior members of the UK judiciary have made it clear that they regard the War as illegal and that this is a significant issue.
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  • For example, Lord Bingham commented that the issue of legality has enhanced the importance of international law in the public mind. It is perhaps unlikely that states chastened by their experience in Iraq will be eager to repeat it. Although they have not been brought before any court, they have been arraigned at the bar of world opinion with resulting damage to their standing and influence.
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Leading opinions on the legality of the War

In October 2003 Robert Alexander QC, Chairman of Justice, published an article in The Times headed Scrutiny by the courts could put a stop to this military adventurism.The article, in summary, made the following points:

     

  • Article 2 (4) of the United Nations Charter specifically prohibits an armed attack on another country unless it is either in self-defence or under the aegis of the United Nations.
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  • UN Security Council Resolution 1441 did not authorise war and stated that the UN was to remain in control. This was recognised by the British and US governments when they promoted a second resolution in March 2003.
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  • The UK government invoked the sophistry of arguing that UN Security Council Resolution 678, passed in 1990 for the express and limited purpose of expelling Iraq from Kuwait, had “revived” to permit an invasion.
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  • The Attorney-General published his advice in summary form in a parliamentary answer in March 2003. Essentially, this relied on Resolution 678.
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  • The Attorney-General refused requests to disclose the details of his advice on the basis that there was a convention that law officers were not obliged to disclose advice which they had provided to the government.
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  • This meant that the following questions had not been answered in public:
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1. What were the factual assumptions upon which the Attorney-General’s advice relied?

2. How did he deal with the clear wording of Resolution 1441?

3. What arguments were used to deal with those of the majority of international lawyers who took the view that an invasion would be unlawful?

4. Did the Attorney-General consider the doctrines of proportionality and necessity under international law?

5. What was the legal basis for asserting that an old UN Resolution could “revive”?

6. Legal advice supplied to the government should be open to challenge in the courts. It was logical that the courts should give a ruling on the legality of action as important as any which the government would take for years to come.

 

Lord Bingham

In November 2008 Lord Bingham, England’s former Lord Chief Justice and senior Law Lord, gave a speech on the rule of law to the British Institute of International and Comparative Law. His comments were reported to include the following:

     

  • The invasion of Iraq by the UK and the US had been a serious violation of international law.
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  • The Attorney-General’s advice failed to acknowledge the lack of hard evidence of Iraq’s non-compliance. Hans Blix and his team of weapons inspectors found no weapons of mass destruction, were making progress and expected to complete their work in a matter of months.
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  • The invasion of Iraq was not authorised by the Security Council and there had been a serious violation of international law and the rule of law.
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Lord Steyn

In November 2003 Lord Steyn, a South African/English former Law Lord, made the following points:

     

  • The treatment by the US government of 660 prisoners in Guantanamo Bay had been a monstrous failure of justice.
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  • Judges have a duty, in times of crisis, to guard against an unprincipled and exorbitant executive response.
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  • As a lawyer brought up to admire the ideals of American democracy and justice, he regarded Guantanamo as a monstrous failure of justice.
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  • The military would act as interrogators, prosecutors, defence counsel and judges, and when death sentences were imposed, as executioners. None of the guarantees of a fair trial need be observed.
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In October 19, 2005 he stated:

     

  • The War with Iraq had made the world a more dangerous place and London a target for terrorist attack.
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  • The invasion of Iraq was military folly and the government scraped the legal barrel in trying to justify it.
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  • It was wrong of the Prime Minister to have called the rule of law a “game”. The maintenance of the rule of law is not a game. It is about access to justice, fundamental human rights and democratic values.
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  • After the recent dreadful bombings in London we were asked to believe that the Iraq War did not make London and the world a more dangerous place. Surely, on top of everything else, we do not have to listen to a fairy tale.
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In a speech to the Bar Council in November 2006, Lord Steyn put forward the following views:

     

  • President Bush was guilty of high crimes under international law. Blair backed Bush, however lawless and outrageous the means adopted.
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  • Members of the British government who were consciously involved in the decision to invade Iraq were subject to the universal criminal jurisdiction of international law.
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  • The Attorney-General’s advice of March 2003 had paved the way for a disastrous war. It had been a black day for the rule of law.
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  • Examples of illegality were the Guantanamo prison camp, secret CIA prison camps, CIA extraordinary rendition flights of prisoners and the invasion of Iraq.
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  • The Bush administration had set out to undermine international institutions and refashion international law.
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  • The record of British troops in Iraq was far from unblemished.
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  • Long after the Prime Minister and his Cabinet had gone, the UK would pay the price for an abdication by our government of independent responsibility in foreign affairs and for playing a part with the Bush administration in undermining the international rule of law.
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Resolving workplace disputes

Resolving workplace disputes: Government proposals

The Government recently published its Response to the Consultation on Resolving Workplace Disputes. In it, the Government indicated a clear message that the employment law system needed a radical overhaul;

“For it is clear that the system is not working as originally intended and is often not a positive experience for either employer or employee.”

Quite what the Government were thinking when they made that statement is beyond comprehension – Often not a positive experience… Going beyond the insinuation that there are some employees and employers who positively relish employment tribunals, the statement appears immensely ignorant. Of course it’s not a positive experience; neither is being dismissed unfairly, being victimised, being discriminated against, being made redundant. Life revolves around one’s work, when that relationship is damaged it shakes us to the core – for both employees and employers. The idea that employment tribunals are intended to be this happy place of mediation and agreement is absurd; too much is at stake. If the issues were resolvable between the parties, they would have done so way before the law got involved. And that is the worrying point that comes from this – this paradox between “resolving workplace disputes” and the focus on conciliation. Employment law should be viewed as family law; a nasty, deeply unpleasant experience for all those involved, which has only come to light because of the inability to agree.


Health and safety offences:level of fines

Health and safety offences:level of fines

Employment law advisers in Bristol, and in the whole of the United Kingdom, should be aware of the decision of the Scottish High Court in the case of HM Advocate v Discovery Homes Ltd 2010 SLT 1096.

The facts, in summary, were that D Ltd, a building company, was fined £5000 for a breach of section 2 of the Health and Safety at Work, etc., Act 1974 for failing to ensure the health and safety of employees. P, a director of the company, was fined £4000 under section 37 of the Act. D Ltd had failed to provide a barrier of adequate strength around a smoke extraction shaft. An employee fell down the shaft and suffered fatal injuries. P was exceptionally underqualified to supervise a large building project. At first instance, the court ruled that to impose a large fine on D Ltd would put the company into liquidation.

The prosecution appealed on the ground that the fines were unduly lenient.

The Scottish court ruled that the appeal would be allowed in respect of D Ltd, and a fine of £40,000 substituted.

The appeal was refused in respect of P.

The court below had been entitled to take the view that the circumstances would not be such as to make D Ltd insolvent. However, it had failed to appreciate that there was a mechaism whereby D Ltd could meet a more substantial fine by diverting a proportion of P’s dividend. Further, it was possible for D Ltd to raise funds from other sources.

The appropriate starting point for a fine in D Ltd’s case was £60,000. A discount of one-third would be applied to take account of the defenfants’ guilty pleas.

P’s fine was not unduly lenient. His source of income was likely to be restricted to allow d Ltd to meet the increased fine. P might be required to access alternative funds to meet his commitments.

Where a company intended to place financial material before a sentencing judge, it should do so in such a way which allowed the completeness and implications of the material to be adequately tested and explored before the sentencing court.

Advice may be sought from employment lawyers on the level of fines in cases involving health and saftey offences. The decision in this case should be brought to the attention of clients seeking such advice.


Migrant Workers

Migrant workers

 

Since the enlargement of the European Union, with the general principle that citizens of EU states have the right of free movement to work, increasing numbers of migrant workers have found employment in the United Kingdom. Migrant workers are generally regarded as being highly motivated, reliable and committed. Many of these workers do not have a fluent grasp of English and may be particularly vulnerable to failings in health and safety practices. The large number of migrant workers from Central and Eastern Europe currently employed in the United Kingdom has started to make an impact on health and safety and employment law.

Bristol has a significant population of migrant workers. Anyone providing legal advice to migrant workers should be aware of their vulnerability.

These workers may be prepared to accept lower wages than their British counterparts, because wages in their home countries are far lower than those in the United Kingdom for comparable work. Those migrant workers who are highly educated find themselves in a position where they are not familiar with their employment rights. They may feel that they are in a vulnerable position in a foreign country with whose laws and customs they are unfamiliar. English employment tribunals and courts are increasingly demonstrating an awareness of this position.

The Health and Safety Executive has shown itself to be well aware of these problems. It has issued detailed advice and guidance on the proper management of migrant workers’ health and safety. The HSE recognises that factors such as poor language skills and unfamiliarity with the workplace can magnify the effects of existing health and safety problems. It advises that migrant workers with better English should be asked to interpret for their less fluent colleagues. Internationally recognised signs, videos or audio materials can be used to communicate health and safety messages.

In general, tribunals and courts have expressly recognised the problems arising in relation to large numbers of workers with a limited grasp of English language, law and culture. Spokespersons for the HSE have repeatedly commented on the vulnerability of such employees in relation to health and safety.

Examples of health and safety prosecutions involving migrant workers

 

 

In July 2009 Thomas Thomson, the director of Thomas Thomson (Blairgowrie) Ltd, a fruit farming company, was fined following the death of a migrant worker by electrocution.

In July 2006 Gerard Faltynowski, a Polish migrant worker, was helping to build a polytunnel in a field near Blairgowrie in Scotland. The polytunnel was placed below three overhead power lines carrying 11,000 volts.

Faltynowski had slotted thirteen poles, each one half a metre in length, and was carrying them vertically. The pole touched the cables. He was killed instantly.

Thomson was fined £1800 under Regulation 3 of the Management of Health and Safety at Work Regulations 1999 for failing to make a suitable risk assessment of working below power lines.

In August 2006 a gangmaster in charge of Chinese migrant cockle pickers was sentenced to 14 years’ imprisonment on 21 counts of manslaughter. The facts, in summary, were that 23 Chinese migrant workers died after a group of 35 cockle pickers were cut off by the tide after dark in February 2004. Twenty-one bodies were later recovered.

The gangmaster – Lin Liang Ren – was also convicted of perverting the course of justice and facilitating illegal immigrants to work in the United Kingdom. His girlfriend, Zhao Xiao Qing, was sentenced to two years and nine months imprisonment for perverting the course of justice and facilitating. His cousin, Lin Mu Yong, received a sentence of four years and nine months imprisonment for helping cocklers to break immigration laws.

In August 2007 Shah Nawaz Pola was fined and imprisoned following an incident in which a worker suffered life-threatening injuries on a construction site.

Pola employed a number of migrant Slovakian workers to build an extension to a house in Bradford. He paid them each £30 a day in cash.

In November 2005 Dusan Dudi, one of the workers, fell from inadequately constructed scaffolding when the wall which he was demolishing collapsed on him. A concrete lintel struck him on the head. He suffered injuries which it was thought would be fatal.

Although Dudi’s life support machine was switched off in hospital, he survived. He was left with severe disabilities and needs constant care. It is thought that he will never work again. He is ineligible for benefits in the United Kingdom and in Slovakia.

Pola had no experience of running a construction site. When he was told by an HSE inspector what needed to be done to protect the safety of workers, he replied that he did not care.

Pola had made no concessions at all to health and safety. He had not written a risk assessment nor method statements. He had failed to provide welfare facilities, proper scaffolding, adequate fall guards or personal protective equipment for his workforce. A number of contractors had left the site because safety standards were so poor.

Pola denied being in charge of the site and refused to accept responsibility for the incident.


Bristol City Council announce cuts of £21million as 350 job losses are expected

 

Bristol City Council announce cuts of £21million as 350 job losses are expected

 

 

 

Bristol City Council has recently outlined its plans for cutting £21 million from its budget, totalling 6% of the total £367m budget, through cuts to services and jobs. Their plans form part of a four year plan that aims to make £70 million of savings. Unfortunately, the council is currently £3 million short of its plan to save £28 million this year, meaning that more drastic action is needed throughout the coming years. The proposals will go to full council in February.

The Good

 

 

 

One positive is that council tax will be frozen again for 2012/13, which will provide a smidgen of comfort for some.

The Bad

 

 

 

The prevented rise in council tax doesn’t mask the fact that some previously free services will now have to be paid for as part of both Council and Governmental strategy:

Disabled people will now have to pay £10 for a “blue badge” to enable them to park in disabled spaces, a service that was previously free. This nationwide plan will raise £40,000 overall – an increase that Labour calls “pathetic”.

Parking at Ashton Court Estate will stop being free, as Bristol residents and visitors will be charged £1, raising an extra £210,000 for the council a year.

Pest control charges will be introduced for those not claiming benefits, with rat extermination costing £25.

£8 million will be saved from the corporate services department, resulting in staff cutbacks.

£5 million will go from the health and social care budget, as Bristol moves towards a focus on private health care. Bristol’s residential care homes are also still under threat of closure.

£5 million will be cut from children and young people’s services

£6 million will go from the neighbourhoods and city development departments. £1.9million has been saved by changing the rubbish and recycling collections contract.

£2 million is expected to be cut from the transport budget, which could result in the scrapping of night buses.

£300,000 funding will be saved from changing the light bulbs in Bristol’s streetlights to energy efficient. While this may appear to be actually a positive step, anyone who looks out to Bristol’s orange glow knows that the damage to the environment has already been done; this is economic, not eco, decision.;

£139,000 funding for the Legacy Commission will also be cut, which may well lead to the organisation, which promotes and encourages achievement among ethnic minorities, shutting down.

The proposals target car drivers from all angles, with more enforcement of bus lanes and increase in pay and display schemes hoping to raise £500,000.

The Ugly

 

 

 

The council also hope to encourage health authorities to hold post-mortems at Flax Bourton Coroner’s Court, which will result in families having to travel further. The change, despite increasing the pain and trauma of an already difficult event, will raise £15,000. Job losses are still expected, despite the increasing workload, which suggests quite how serious the troubles facing Bristol coroner services are.

350 staff will be made redundant, totalling 5% of the council’s total workforce. These job losses come on top of the 380 redundancies in this year. The Council also want to change the terms and conditions of contracts of employment as another way to save money. Overtime payments will be cut, and offers of unpaid leave increased.

Ironically, perhaps, redundancy is not always the cheapest option, particularly as the council will now have to pay out an extra £9.5 million in redundancy pay.

Barbera Janke, leader of Bristol Council said that the council was striving for efficiency and that “the budget proposals must reflect the reality of the economic position we face”.

The 350 redundant staff surely understand the economic position that they face.