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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 . 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.
Govia GTR Railway Ltd v. ASLEF  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.
Photo via Guardian.co.uk
Begraj v Secretary of State for Justice  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. Continue reading
Retailer 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.
Mba v London Borough Of Merton  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’ , and applying the principle in Dobie v Burns International Security (UK) Limited  ICR 812, the errors did not make any difference to the outcome.
Benkharbouche v Embassy of the Republic of Sudan (Jurisdictional Points: State Immunity)  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). Continue reading
C-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.