Category: Employment


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.

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Why EU law will not make the trains run on time

21 December 2016 by

pay-southern-rail-train-strikeGovia GTR Railway Ltd v. ASLEF [2016] EWCA Civ 1309, 20 December 2016 – read judgment 

As all domestic readers know, there is a long running industrial dispute between Southern Rail and ASLEF, the train drivers’ union. The issue : DOOP  – Driver Only Operated Passenger – Trains. The company says they are perfectly safe, have been used extensively, and there will be no job losses. It claims over 600,000 journeys are being affected per day. The union strongly disputes that the new system of door closing is as safe as the old for passengers, and says that the new system is very stressful for drivers. 

Under domestic law, there appears to be no doubt that the strike action is lawful. In the time-honoured phrase, it is in furtherance and contemplation of a trade dispute, and the company accepted that a proper and lawful strike ballot was held – with a 75% turnout of members of whom 90% favoured the strike.

But the company argued that strike action was in breach of EU law, and hence it was entitled to an interlocutory injunction preventing the strike pending trial.

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No entitlement to human rights damages after ‘caste discrimination’ case collapse

25 February 2015 by

Photo via Guardian.co.uk

Photo via Guardian.co.uk

Begraj v Secretary of State for Justice [2015] EWHC 250 (QB) – Read judgment

Adam Wagner acted for the Secretary of State in this case. He is not the author of  this post.

The High Court has ruled that when long-running employment tribunal hearing collapsed as the result of the judge’s recusal due to apparent bias the claimants in the action could not obtain damages for wasted costs under section 6 of the Human Rights Act (HRA) 1998 (specifically Article 6, the right to a fair trial) or the EU Charter.

The High Court confirmed that the County Court had acted lawfully in striking out the claim for having no reasonable prospects of success and for being an abuse of process. The state immunity for judicial acts in section 9(3) HRA 1998 applied, and in any event there had been no breach of Article 6 as the judge’s recusal preserved the parties’ Article 6 rights. 
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M&S, Muslim employees and the tricky issue of reasonable accommodation

23 December 2013 by

Screen Shot 2013-12-23 at 10.26.46Retailer Marks & Spencer is in the news again, and not this time for its Christmas advert. The ad was, incidentally, filmed in Temple – perhaps M&S bigwigs were on their way to getting some advice on how to deal with Muslim employees who didn’t want to serve pork and alcohol?

Anyway, the retailer has allowed Muslim employees to opt out of the requirement to serve pork and alcohol, both of which their religion prohibits – although it is not clear whether they are also prohibited from serving the products to other Muslims/non-Muslims. If Islam is anything like Judaism, which I am more familiar with, I imagine the practice may vary according to communities.

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Christian care worker loses Sunday working discrimination appeal – Richard Wayman

5 December 2013 by

300px-Duccio_di_Buoninsegna_014Mba v London Borough Of Merton [2013] EWCA Civ 1562 – Read judgment

The Court of Appeal has dismissed the appeal of a Christian care worker against the decision of the Employment Appeal Tribunal (EAT) that a requirement that she work on Sundays indirectly discriminated against her on the grounds of religion or belief.

The Court unanimously found that although both the EAT and the Employment Tribunal (ET) had erred in law, the ET’s decision was ‘plainly and unarguably right’ [24], and applying the principle in Dobie v Burns International Security (UK) Limited [1984] ICR 812, the errors did not make any difference to the outcome.


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EU employment rights law trumps diplomatic immunity – what next?

15 October 2013 by

European-Union-Flag_1Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity) [2013] UKEAT 0401_12_0410 4 October 2013 – read judgment

These appeals, heard at the same time, raise the question whether someone employed in the UK by a foreign diplomatic mission as a member of its domestic staff may bring a claim to assert employment rights against the country whose mission it is, despite being met by an assertion of State Immunity under the State Immunity Act 1978. The EAT regarded itself bound by the supremacy of EU law to disapply the SIA, despite the fact that it had no jurisdiction to do so under the 1998 Human Rights Act.

This is the first time that the full force of the rights contained in the EU Charter of Fundamental Rights and Freedoms has made itself felt in a domestic dispute between private parties (although the embassies themselves are state institutions, as an employment dispute the matter is one of private law only). If upheld on appeal, this ruling will have consequences that extend far beyond the somewhat esoteric area of the immunity of diplomatic missions, and will make the effect of the Human Rights Act look puny by comparison (as pointed out by Joshua Rozenberg  in his post on this case).
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Surrogacy and maternity rights

2 October 2013 by

Pregnant_woman_silhouette.pngC-363/12: A Government Department and the Board of Management of a Community School – read AG Wahl’s opinion

Case C‑167/12 : C.D. v S.T. – read AG Kokott’s opinion 

Two opinions from Luxembourg on exactly the same issue, with diametrically opposed conclusions. AG Wahl (male) says, in brief, that the Pregnancy Workers Directive does what it says on the tin. It does not apply to non-pregnant employees, even though one of these might be an “intended mother” i.e. a woman who for medical reasons cannot carry a pregnancy to term, who has commissioned a surrogacy.  AG Kokott (female)  concludes firmly that the Pregnancy Workers Directive was designed to protect the relationship between mothers and their unborn or newborn, whether naturally produced or arranged by surrogacy.  These opinions were published on the same day, with no mention in either of the other case. We can only conclude that the AGs read each other’s drafts, and decided to go to press with them together, leaving the CJEU to reconcile them in some way or another.


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No trade unions for clergy if the Archbishop says no, rules European Court

1 August 2013 by

priestSindacutul ‘Pastorul Cel Bun’ v. Romania [2013] ECHR 646 – read judgment here.

The Orthodox Archbishop of Craiova in Romania, that is, not the Archbishop of Canterbury. The European Court of Human Rights recently handed down an interesting ruling on Article 11 (freedom of assembly and association) that could also have more far-reaching consequences for the application of Article 9 (freedom of religion).

The Grand Chamber, overruling the earlier decision of the Third Section, held by a majority that it was not a breach of the right to freedom of association for the Romanian Government to refuse to register a trade union formed by a group of Orthodox priests, after the Archbishop and Holy Synod (the governing body of the Romanian Orthodox Church) had decided formal trade unions should not be allowed within the church.

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A historic leap forward for equal pay claimants?

27 June 2013 by

Money purse - WalletDumfries and Galloway -v- North [2013] UKSC 45 – Read judgment

Yesterday’s much heralded equal pay ‘victory’ in the Supreme Court (see BBC Report) undoubtedly will be good news for the specific female claimants in the case who seek to vindicate their European Union rights to equal pay.

The female claimants do so by comparing their pay with male colleagues working in entirely distinct parts of the same local authority (being Dumfries and Galloway Council) but arguably on common terms and conditions of employment (often referred to as the ‘same employment’ test).

However, in legal terms, arguably the unanimous Judgment delivered by Lady Hale in the Supreme Court is not quite so revolutionary. Many practitioners, outside Scotland at least, had anticipated its outcome.

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Unison to Judicially Review ‘Brutal’ Employment Tribunal Fees – Lauren Godfrey

21 June 2013 by

unison-logo-1News that Unison has applied for Judicial Review of the Government’s controversial plans to introduce fees in the Employment Tribunal has gone viral in the Labour Law community.  A key theme in the application is access to justice for working people, particularly women.

Unison has described the proposed fees of up to£1000 for individuals to bring a claim and have that claim determined in the Employment Tribunals as ”brutal”.

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Can an employer increase the sanction for misconduct on appeal?

11 June 2013 by

pdp0564782_97This was the question confronting Judge Hegarty QC in, McMillan v Airedale NHS Foundation Trust [2013] EWHC 1504 QB – read judgment

The answer of the Court was that clear and express words in the contract would be required in order to confer a power to increase a sanction on an Appeal Panel.

The Claimant was a Consultant Obstetrician and Gynaecologist who was involved in a serious untoward incident when a patient suffered significant and uncontrolled bleeding in the aftermath of a successful caesarean delivery which necessitated emergency surgery to remove her spleen. In the aftermath, the Trust’s Medical Director formed the view that the Claimant had not been honest about the care of the patient and had, in fact, given conflicting accounts. This was also the conclusion of a disciplinary hearing which then issued a final written warning and referred the case to the GMC. The Claimant appealed.

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Racial harassment claim by Jewish teacher over union’s Israel-Palestine policies fails – Robert Kellar

16 April 2013 by

121221-university-college-unionMr R Fraser -v- University & College Union – Case Numbers: 2203390/201 – Read judgment

In this case, a member of the Union brought various claims of harassment related to his “race, religion or belief” under section 57 of the Equality Act 2010. The wide ranging allegations made by the Claimant arose, in essence, from the way in which Union had handled the Israel/Palestine debate. For example, claims arose from motions debated at the Union’s congress on proposals for a boycott of Israeli academic institutions and related questions. The Claimant alleged that the Union was guilty of “institutional anti-Semitism” which he alleged constituted harassment of him as a Jewish member of the Union.

The Tribunal described the litigation as being “gargantuan” in scale. It heard from 34 witnesses including academics and MPs. The hearing lasted 20 days and required 23 hearing bundles. Ultimately, in an extremely robust decision, the Tribunal rejected the Claimant’s allegations in their entirety. It found them to be “manifestly unmeritorious” and an “impermissible attempt to achieve political end by litigious means”. The Tribunal also expressed themselves as being worried by the implications of the claim. They sensed that underlying the litigation was a “worrying disregard for pluralism, tolerance and freedom of expression”. Of particular interest was the way in which the Tribunal dealt with issues of legal principle at heart of the claim.


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Disclosure of ill-treatment allegations would breach nurse’s human rights, rules High Court

12 March 2013 by

nursing-homeR (on the application of A) v the Chief Constable of Kent Constabulary [2013] EWHC 424 (Admin) – read judgment

This was an application for judicial review, and a claim under the Human Rights Act 1998, in respect of the defendant’s decision to disclose allegations of neglect and ill-treatment of care home residents in an Enhanced Criminal Records Certificate dated 12th October 2012.

Background

In August 2012, the defendant received a request from the Criminal Records Bureau  for an enhanced check to be made in respect of the Claimant concerning her proposed employment by Nightingales 24 7 as a registered nurse. The information related to the alleged mistreatment of several elderly and vulnerable adults resident in the care home in which [A] worked as a Registered General Nurse.  The allegations were made by the residents and the health care workers in the charge of A, a registered nurse who qualified in Nigeria. She claimed that these allegations had been made maliciously because the health care assistants resented the way in which she managed them. She also claimed that some of the allegations were motivated by racism.
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Government’s back to work schemes ruled unlawful without rights to refuse

13 February 2013 by

PoundlandReilly & Anor, R (On the Application of) [2013] EWHC Civ 66 – read judgment

Adam Wagner has also commented on this case in The Times (£) as well as on Newsnight (from the start)

The Court of Appeal has ruled that regulations under the Jobseekers Act 1995 were unlawful as not meeting the requirements of that statute.

This was an appeal against a decision by Foskett J that the regulations were lawful. The two appellants were unemployed and claiming the Jobseekers’s Allowance.  After refusing to participate in schemes under the Regulations in which they were required to work for no pay ( the Sector-Based Work Academy in Miss Reilly’s case and the Community Action Programme (CAP) in Mr Wilson’s), they were told that they risked losing their allowance. 
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Victory to the (Pharmacy) Workers!

12 February 2013 by

Boots the ChemistPharmacists Defence Association Union v Boots Management Services Ltd – Read judgment

The consequences of the change of approach of the European Court of Human Rights in the Article 11 case of Demir has definitely washed up on the shores of the UK

In a recent decision of the Central Arbitration Committee presided over by Mary Stacey, it was decided that it was necessary to amend the wording of the Trade Union and Labour Relations (Consolidation) Act 1992 (Sched 1A para 35) to make it compliant with Article 11 of the ECHR and the decision of the Strasbourg Court in Demir and Baykara v Turkey.

The decision of the CAC is a report from the front line of the battle between independent unions and employers about granting the former recognition.

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