The Round-Up: Government wins benefits cap appeal, the scope of employee misconduct, and international crimes against humanity

19 March 2018 by

Baby holds a woman's finger

Image credit: Guardian

DA & Orss, R (On the Application Of) v The Secretary of State for Work and Pensions: The Court of Appeal by a 2:1 majority allowed the government’s appeal against a ruling that their benefits cap unlawfully discriminated against lone parents with children under the age of two.

Whilst it was not disputed that Article 14 was engaged both through A1P1 and Article 8, Sir. Patrick Elias did not find that the claimants were in a significantly different situation to that of lone parents with older children such as to constitute indirect discrimination under the Thlimmenos principle [135]. He concluded:

the question is ultimately a narrow one. Are the circumstances of single parents with children under two sufficiently different from other lone parents as to require an exception to be made to the imposition of the benefit cap?… I do not accept that the problems are sufficiently proportionately disabling to these lone parents to make it unjust not to treat them differently.

Furthermore, the government had a wide margin of discretion regarding proportionality of means and ends when it came to ‘general measures of economic or social strategy’: the relevant test was whether the relevant regulations were ‘manifestly without reasonable foundation.’ It was found that in this case government policy aims constituted sufficient foundation, although both Sir. Elias and McCombe LJ (dissenting) quoted Lady Hale’s dissenting opinion in R (SG and others) v Secretary of State for Work and Pensions. That case, a challenge to an older version of the benefit cap regulations on the grounds of discrimination against women which narrowly failed in the Supreme Court, was heavily relied upon in this judgement. For a brief look at that case see our coverage here. The dispute as to whether Article 3 of the UN Convention on the Rights of the Child was engaged turned partly on Sir. Elias and McCombe LJ’s different interpretations of the opinions offered in SG.

The future of the benefits cap is still contested, as the claimants have been given permission to appeal to the Supreme Court. Meanwhile, solicitors from Child Poverty Action group are mounting a further High Court challenge to the regulations which will take a wider approach, challenging the lawfulness of the cap as it applies to lone parents irrespective of the age of their youngest child.


Reilly v Sandwell Metropolitan Borough Council: The appeal of a headteacher who was sacked after failing to disclose her friendship with a convicted sex offender was unanimously dismissed by the Supreme Court.

The Employment Tribunal’s ruling that the dismissal was not unfair rested, inter alia, on the finding that there were reasonable grounds to believe non-disclosure amounted to misconduct, in that it was “obvious that for a head teacher to have failed to disclose such information to her governing body whether it is expressed in her contract of employment or not is a matter of misconduct” [14].

In this case, the panel had reasonable grounds to conclude that non-disclosure amounted to a breach of contractual duty. However, Lord Wilson observed, obiter, that the case law indicated that ‘conduct’ within the meaning of section 98(2)(b) of the Employment Rights Act ‘can precipitate a fair dismissal even if it does not constitute a breach of her contract of employment’ [24].

Lady Hale, agreeing that the claimant’s non-disclosure constituted a breach, suggested that the case might have presented an opportunity to consider two points of law of general public importance:

The first is whether a dismissal based on an employee’s “conduct” can ever be fair if that conduct is not in breach of the employee’s contract of employment. Can there be “conduct” within the meaning of section 98(2)(b) which is not contractual misconduct? Can conduct which is not contractual misconduct be “some other substantial reason of a kind such as to justify the dismissal” within the meaning of section 98(1)(b)? It is not difficult to think of arguments on either side of this question but we have not heard them – we were only asked to decide whether there was a duty to disclose and there clearly was.

The second point of public importance was whether the approach to be taken by a tribunal under s98(1)-(4) laid down in British Homes Stores Ltd v Burchell (Note) [1978] is correct:

Even in relation to the first part of the inquiry, as to the reason for the dismissal, the Burchell approach can lead to dismissals which were in fact fair being treated as unfair and dismissals which were in fact unfair being treated as fair. Once again, it is not difficult to think of arguments on either side of this question but we have not heard them.

Malcolm Turnbull and Aung San Suu Kyi

Image Credit: Guardian

In The News

  • Australian lawyers have filed a private prosecution case against Aung San Su Kyi, who is visiting Australia, for crimes against humanity. The application comes under the principle of universal jurisdiction, whereby national courts can hear allegations of the most serious criminal offences under international law, regardless of the offender’s nationality, or the location where the alleged offences were committed. However, the application will require the consent of the attorney-general to proceed: it is doubted whether a government which has invited Aung San Su Kyi to the country would subsequently consent to her prosecution.
  • The President of the Philippines has announced that the country is to withdraw from the International Criminal Court, after it opened a crimes against humanity investigation into his vicious war on drugs, which has claimed the lives of an estimated 8,000 people since he took office. The announcement follows escalating tensions between the Philippines and the UN. The president said that the ICC had shown a ‘brazen ignorance of the law’ and that the statute was not ‘effective or enforceable’ in the country. However, as article 127 of the statute specifies that ‘withdrawal shall not affect any cooperation with the court in connection with criminal investigations,’ and as withdrawal takes a year to have effect, the President’s sudden move will not protect him from any trial which should now arise.
  • An Irish court has refused the extradition of a suspected drugs trafficker to Poland on the grounds that recent changes to the Polish judicial system have been ‘so immense’ as to leave the rule of law ‘systematically damaged.’ The judge referred the case instead to the ECJ, in a move which could have profound consequences for the future of Poland’s relationship with the EU.
  • The Council of Europe, Europe’s leading human rights body, is facing an ‘unprecedented budgetary crisis’ of at least €42m (or 10% of its annual budget) following Russia’s decision to cancel funding last year. Fierce debate as to whether Russia should remain a member of the Council is ongoing.

And, finally…

A Romanian court has rejected a man’s submission that he is, in fact, alive, after his wife registered him officially dead, and he was out of time to reverse the decision. The man’s physical presence in court was apparently not enough to sway the judges, who indicated that the ruling is final.

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