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Chief Justice Bell's Verdict
19th June 1997
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The Hon. Mr Justice Bell
SUMMARY OF THE JUDGEMENT
The last part of the leaflet, of those parts which the Plaintiffs allege to be defamatory, relates to their employment practices. This part of the leaflet bears the defamatory meaning that the First and Second Plaintiffs pay their workers low wages and provide bad working conditions, helping to depress wages for workers in the catering trade in Britain; that they are only interested in recruiting cheap labour and exploit disadvantaged groups, women and black people especially, as a result; and that they have a policy of preventing unionisation by getting rid of pro-union workers. It is defamatory of a commercial, trading company to say that it pays its workers low wages. It is more defamatory to say that it is only interested in recruiting cheap labour and that it exploits disadvantaged groups, women and black people as a result. It is also and separately defamatory to say that it provides bad working conditions, but the real, general sting of this part of the leaflet is the combination of low pay and bad working conditions: low pay for bad conditions. The allegation that the Plaintiffs have a policy of preventing unionisation by getting rid of pro-union workers is not just part of the general sting, it is a specific defamatory charge of its own. On balance I do not believe it to be defamatory of a corporation to say simply that it is "anti-union" which is what the Defendants were determined to prove to be true of each of the Plaintiffs. But it is clearly defamatory to say that the Plaintiffs have a policy of sacking employees who have union sympathies. Although saying that workers do "badly" in terms of pay and conditions or that wages are "low" might appear to be expressions of opinion or comments in many contexts, I judge the defamatory statements in this part of the leaflet, or "factsheet", as the Defendants called it, to be statements of alleged facts. Apart from the introductory statements to the leaflet as a whole, this section of the leaflet begins with the headline question "What's it like working for McDonald's?" Clearly what is to follow are the facts, or alleged facts, about working for McDonald's. Although the first words of the text - "There must be a serious problem" - are opinion or comment, I see everything which follows as categoric statements of fact. It follows that if the Defendants are to defend the defamatory charges successfully, they must justify them by showing them to be true in substance and in fact. My conclusions are as follows. The Second Plaintiff does pay its workers low wages, thereby helping to depress wages for workers in the catering trade in Britain. To this extent the defamatory charge in the leaflet is partly justified. It may be that the First Plaintiff also pays its workers low wages, but the evidence is insufficient to prove that this is so. Despite the Second Plaintiff's low wages it is not true to say that it is only interested in recruiting cheap labour and that it exploits disadvantaged groups, women and black people especially as a result. Nor is this true of the First Plaintiff. Both Plaintiffs are interested in inexpensive labour, but they are also keen to have people who will work well and appear cheerful to please their customers. They treat women and black crew members the same as the rest so far as pay and other conditions of employment are concerned. They do not target them as cheap labour. They are genuinely equal opportunity employers. So far as working conditions apart from pay are concerned the Plaintiffs' crew do work in the evenings and at weekends as alleged in the leaflet, but there is nothing bad about this; indeed it suits many employees. While the statistical chances of significant promotion for the Plaintiffs' crew members are small, it is not true to say that chances of promotion are minimal. There is a real chance of anyone who is really interested moving to some level of responsibility but most people who work in McDonald's restaurants are not interested in significant promotion in their part-time jobs with McDonald's. The work of a McDonald's crew member is hard and sometimes noisy, and it is hectic for significant parts of some shifts, for the whole of the middle of Saturdays in all restaurants and for a lot of every day in some particular busy restaurants. There are occasions of particularly intense pressure on some occasions when some restaurants find themselves short-staffed. All this appears to be the same in both the U.S. and the U.K. It has been common for full-time workers at the Second Plaintiff's U.K. restaurants to work more than the so-called maximum 39 hours a week, but it has been unusual for crew to work more than 45 hours a week. As often as not, weeks over 39 hours have been worked willingly because crew have wanted to earn more money. 45 hours is not an unduly long week for McDonald's crew to work from time to time, in my view, even for someone in his or her late teens working hard for a lot of the time. The significance of such weekly hours relates to pay (absence of an increased overtime rate in U.K. McDonald's and the need to work those hours to collect something like a decent wage) rather than to bad working conditions. Weeks over 40 hours are less likely in the U.S. because of the Federal requirement to pay overtime rates for hours over 40 per week. Double shifts or unduly long shifts have been comparatively rare in the U.K. I had no real evidence of them being common in the U.S., and they are less likely there because of the risk of running into overtime with its extra expense. On the other hand it is not unusual to be asked to stay on after the end of a shift for a while, and there is a significant risk of substantial, unwarned extensions from time to time. I would expect the position to be much the same in the U.S., but modified by the need to avoid overtime costs. Very late cleaning up "closes", sometimes going on through the night, have occurred from time to time in the U.K., but generally speaking they only occur on very few occasions each year for any one crew member. I would expect the position to be the same in the U.S., but yet again moderated by the need to avoid overtime if possible. Proper breaks are subject to the demands of custom in the Second Plaintiff's restaurants. This means that they are often taken early or late in a shift, or cut short. Adequate drink breaks are not always easy to come by. The result is that crew can work hard for long periods without adequate breaks. I would expect the position to be the same in the U.S. because the pressures are the same. There was evidence of young people working unlawful hours, but this did not in itself help me to decide whether conditions were generally bad. The complete reverse of the practices to which I have just referred, is that from time to time U.K. crew are invited to go home early if a restaurant is quiet. Some crew agree to go but the very act of asking puts pressure on young crew to agree and there have been occasions when direct and unfair pressure has been put on crew to agree. Sometimes crew have been sent home for reasons, like an untidy uniform, which would not have bitten if the restaurant had been busy. If a crew member agrees to go home, he or she is not paid for the balance of the shift. This practice is most unfair as it deprives crew, mostly young, of pay for time which they have set aside to earn money at McDonald's. On the evidence before me I cannot say that it happens often but it should not happen at all, and in my JUDGEMENT it shows where the ultimate balance lies in the Second Plaintiff's JUDGEMENT, between saving a few pounds and the interest of the individual, often young employee. I had no direct evidence of the extent to which it happens, if it happens at all, in the U.S. However, it is the kind of systemic practice which is passed from an international holding company to its national offshoot, and on that basis I find that it probably happens in the U.S. too. This must bear on job satisfaction, as must the fact that there are no contractually guaranteed hours from week to week, but both are primarily relevant to pay. There have been instances of autocratic management in individual stores in the U.K. Although this does not surprise me with so many young managers working under pressure to provide fast service according to regimented procedures, the evidence fell short of showing that it was a standard characteristic of work in U.K. stores. The Defendants' case to this effect assumed a policy of breaking crew morale, which I found totally implausible. There was little evidence of the U.S. in this respect. Because of the lack of union representation, there is no third party for any member of crew to go to in the event of a serious grievance relating to his or her employment by either Plaintiff, but generally speaking the Plaintiffs' system of Rap Sessions and Crew Meetings at which criticisms can be voiced and paid heed to, works, although some crew are suspicious of it. The Plaintiffs intend it to work. Although one might expect that the pace of work at McDonald's, and the long hours on occasions, might lead to an element of risk, and although it has been thought necessary to improve the Second Plaintiff's safety management systems since the company appointed a Safety Officer in 1990 and voluntarily subjected itself to a Health and Safety Executive inspection and report in 1992, crew work in the Plaintiffs' restaurants is not unsafe or dangerous. People suffer minor burns as one would expect in any work involving kitchens and they suffer other injuries from time to time. But even the number of burns has not been extravagant and the number of serious injuries, including serious burns, has been modest. I was told of only one fatal injury to a crew member employed by the Second Plaintiff. Although that was one too many it occurred after eighteen years of operation in the U.K. There is no reason to believe that the safety picture is different in the U.S. The Defendants made much during the evidence, although not in final submissions, of the Plaintiffs' insistence that crew should smile at customers. I could not understand their criticism. Many normal people greet strangers as well as friends with a smile anyway, and I do not see why a retail company should not expect its staff to welcome customers in that way. It costs the employee nothing, and the evidence that crew found it difficult was negligible. The Plaintiffs' keenness that crew should smile, which was common ground, to my mind shows that both companies want crew to appear cheerful to please the customer, and they are unlikely to achieve that if working conditions are bad. Despite the hard and sometimes noisy and hectic nature of the work, occasional long, extended shifts including late closes, inadequate and unreliable breaks during busy shifts, instances of autocratic management, lack of third party representation in cases of grievance and occasional requests to go home early without pay for the balance of the shift, if business is slack, I do not judge the Plaintiffs' conditions of work, other than pay, to be generally "bad", for its restaurant workforce. Although a number of the witnesses disliked the work, even some of those who came to Court with strong criticisms stayed in their jobs for quite a while. There was evidence that young crew liked the buzz of being busy together. One of the Second Plaintiff's big store managers, now a franchisee, agreed with responses to a crew questionnaire, which said that crew most liked the atmosphere and least liked the money. One of the Second Plaintiff's severest critics said that the satisfaction which he gained from the work was quite high, but the satisfaction from pay was non-existent. So there was the same picture from both ends of the spectrum of evidence. The success of the restaurants of both Plaintiff companies has relied on smart, cheerful staff providing brisk service and it seems to me that it is inherently difficult to achieve this unless crew are reasonably happy at their work. I take full account of the indomitability of the human spirit in the face of adversity, but I find it difficult to see how either Plaintiff could have grown so fast in countries where there is a high expectation of living and working conditions if McDonald's working conditions had been truly and generally bad. The First and Second Plaintiffs are strongly antipathetic to any idea of unionisation of crew in their restaurants but they do not have a policy of preventing unionisation by getting rid of pro-union workers as the leaflet alleges. That allegation is untrue. The result of all this is that the message of this part of the leaflet to the effect that the Second Plaintiff pays its workers low wages, helping to depress wages for workers in the catering trade in Britain has been proved to be true. It is justified. The message that the Second Plaintiff pays its workers low wages has not been proved to be true. The charge that the Plaintiffs are only interested in recruiting cheap labour and that they exploit disadvantaged groups, women and black people especially, as a result, has not been proved to be true. It is not justified. It has not been proved that the Plaintiffs provide bad working conditions. That charge has not been justified. The charge that the Plaintiffs have a policy of preventing unionisation by getting rid of pro-union workers is not true. The evidence has disclosed unsatisfactory aspects of the Plaintiffs' working conditions, and these are to be taken into account in assessing damages, but the real, general sting of low pay for bad conditions has not been shown to be true. It has not been justified.
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