Employment


Article 11: Right to strike and insecure workers – Lauren Godfrey

17 April 2014 by

strike2_5Two different bodies in the last week have reflected on issues concerning the fundamental imbalance in the employment relationship. This provides an opportunity to reflect on what, if any, role human rights principles have in redressing that imbalance:

(1)    The Article 11 Case of RMT -v- UK (Application No 31045/10): The European Court Human Rights (Fourth Section sitting as a Chamber) found that Article 11 (the right to freedom of association) was not infringed by the restrictions imposed on trade unions calling on their members to take strike action by the UK Government as part of the statutory scheme which provides for lawful strikes; that is strikes that attract statutory immunity from common law liability. According to the ECHR, these restrictions on lawful striking were within the wide margin of appreciation enjoyed by the UK Government. The RMT’s case was that the restrictions impermissibly restricted their ability to protect and promote the interests of their members working in industries and for employers with complex corporate structures.

(2)    Zero Hour Contracts Consultation: The Government’s consultation on zero hours contract which appears to have been somewhat upstaged by the Parliament’s Scottish Affairs Committee publishing an interim report on zero-hours contracts which while recommending some changes, ultimately concludes that ‘in the majority of cases’ zero-hours contracts should not be used at all. The interim report contends that the lack of job security for workers engaged on zero hours contracts places a practical impediment to the majority of the workers surveyed from enforcing other basic rights including the minimum wage, part-time worker protections, and protection for those with caring responsibilities: see summary here.
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Does the EU Rights Charter apply to private disputes? Sometimes, sometimes not…

22 January 2014 by

European-Union-Flag_1Association de médiation sociale v Union locale des syndicats CGT, Hichem Laboubi, Union départementale CGT des Bouches-du-Rhône, Confédération générale du travail (CGT), Case C‑176/12 – read judgement

The Grand Chamber of the Court of Justice of the European Union has ruled on whether the Charter of Fundamental Rights of the European Union can apply in a dispute between private parties, although it is not quite clear what its conclusion implies.

This was a request for a preliminary ruling under Article 267 TFEU from the Cour de cassation (France), received by the CJEU in April last year.
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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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Hospital closures and the rule of law

8 November 2013 by

lewisham-dont-keep-calm-posterTrust Special Administrator appointed to South London Healthcare NHS Trust v. LB Lewisham & Save Lewisham Hospital Campaign [2013] EWCA Civ 1409, 8 November 2013  – read judgment

Jeremy Hyam of 1 Crown Office Row acted for Save Lewisham Hospital Campaign. He was not involved in the writing of this post.

It takes a bit of time to close a hospital or make major changes to it. This is because you must go through a complicated set of consultations with all those likely to be affected before action can be taken. Many, if not most, people say this is a good thing, and Parliament has embedded these duties of consultation in the law.

In this case, the Department of Health said it could close the A&E Department of Lewisham Hospital, as well as limiting maternity services to midwives alone and reducing paediatric services – without going through the formal consultation process. The Borough of Lewisham, and a local campaigning group, said that the DoH had no power in law to do this.

The judge, Silber J, agreed with them, and so now does the Court of Appeal. It dismissed Jeremy Hunt’s appeal 10 days ago, and published its reasons today.

If Mr Grayling has his way, it seems unlikely that the Save Lewisham Hospital Campaign would have had “standing” to bring this claim, however meritorious in law it may have been: see my post on this. I dare say this lesson will not be lost on him, though, sadly, many think that such wins against the government make it more rather than less likely that he will implement his changes to the rules in judicial review.

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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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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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Doctor entitled to rely on GMC’s assurance that his Caribbean qualification would be acceptable in UK

18 April 2013 by

785px-Doctors_stethoscope_1Patel, R(on the application of) v The General Medical Council  [2013] EWCA Civ 327 – read judgment

Kate Beattie of 1 Crown Office Row was led by Richard Drabble QC for the appellant in this case. She has nothing to do with the writing of this post.

The registration criteria for doctors trained abroad have been changed to respond to abuse by medical schools claiming false affiliations with the institutions listed in the WHO Directory. Although the 2006 rules effecting this change were lawful,  the appellant had a legitimate expectation that he could rely on individual and specific assurances that he would be allowed to register on completion of his training.

The appellant, a qualified pharmacist, wished to qualify as a doctor. He sought assurances from the GMC that his part time course with a medical school in St Kitts. affiliated with the London College of Medicine, would lead to an acceptable qualification. The GMC’s replies indicated that it would be. He performed his pre-clinical studies by distance learning at IUHS in St. Kitts and then completed his supervised clinical rotations at United Kingdom hospitals. This course clearly represented a huge investment of time and money by the appellant.  However, registration of his Primary Medical Qualification (PMQ) was subsequently refused because the registration criteria had been changed.
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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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Badmouthing the pope in heated news room does not amount to harassment

20 February 2013 by

pope-benedict-xviHeafield v Times Newspaper Ltd (Religion or Belief Discrimination) [2013] UKEAT 1305_12_1701 (17 January 2013) – read judgment

The Employment Appeal Tribunal (EAT) has found that  the use of bad language was evidently merely an expression of bad temper and not intended to express hostility to the Pope or Catholicism and that it did not constitute harassment within the meaning of the Employment Equality (Religion or Belief) Regulations 2003.

Background

The Appellant, a casual sub-editor on the Times Newspaper, was a Roman Catholic. He was working at the Times during the visit to the United Kingdom of the Pope in 2010. During March the Times was preparing a story about the Pope relating to allegations that he had protected a paedophile priest.  There was some delay in producing the story, and one of the editors in the newsroom, a Mr Wilson, shouted across to the senior production executives “can anyone tell what’s happening to the fucking Pope?”.  When there was no response he repeated the question more loudly.  The Appellant was upset and offended what he heard.  He raised a complaint, which in his view was not properly progressed, and he then brought a claim in the Employment Tribunal for harassment and victimisation on the grounds of his religious belief.
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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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Blanket disclosure requirement for minor past convictions breaches Convention

30 January 2013 by

criminal-background-check T, R on the application of) v Chief Constable of Greater Manchester, Secretary of State for the Home Department and Secretary of State for Justice; AW, R (on the application of) v Secretary of State for Justice and JB, R (on the application of) v Secretary of State for Justice  [2013] EWCA Civ 25 – read judgment

The Court of Appeal has ruled that the statutory requirement that criminal convictions and cautions must be disclosed in an enhanced criminal record check (“ECRC”) in the context of particular types of employment interfered with the appellants’ right to respect for private life under Article 8.

Neither of the disclosure provisions, under the Police Act 1997 and the Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975, were  proportionate since they went beyond the legitimate aims of protecting employers and vulnerable individuals.

See Panopticon’s post on the ruling and their previous post (republished on our blog) on the dismissal of T’s application for judicial review in the Administrative Court. We add a few words of our own.
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Facebook faux pas and disciplinary proceedings – when do human rights come in?

21 November 2012 by

Smith v Trafford Housing Trust [2012] EWHC 3221 (Ch) – read judgment 

Turner v East Midlands Trains [2012] EWCA Civ 1470 – read judgment

Two employment cases, about Facebook and train tickets respectively, indicate the difficulties of deciding where human rights may or may not be raised in disputes between private parties – neither defendant in these cases was a public authority. 

It is perfectly clear that where there is a statutory provision under attack, Section 3 of the Human Rights Act mandates the “reading down” of its wording to conform to Convention rights even though there is no “public authority” amongst the parties to the litigation. The Turner case below illustrates this particular aspect of the “horizontal” effect of the HRA in disputes between private parties.

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Aarhus Abortion Abu Qatada Abuse Access to justice adoption ALBA Allison Bailey Al Qaeda animal rights anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 Artificial Intelligence Asbestos assisted suicide asylum Australia autism benefits Bill of Rights biotechnology blogging Bloody Sunday brexit Bribery Catholicism Chagos Islanders Children children's rights China christianity citizenship civil liberties campaigners climate change clinical negligence Coercion common law confidentiality consent conservation constitution contempt of court Control orders Copyright coronavirus Coroners costs Court of Protection crime Cybersecurity Damages data protection death penalty defamation deportation deprivation of liberty Detention diplomatic immunity disability disclosure Discrimination disease divorce DNA domestic violence duty of candour duty of care ECHR ECtHR Education election Employment Employment Law Employment Tribunal Environment Equality Act Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Court of Justice evidence extradition extraordinary rendition Family Fertility FGM Finance football foreign criminals foreign office France freedom of assembly Freedom of Expression freedom of information freedom of speech Gay marriage Gaza gender genetics Germany Google Grenfell Health high court HIV home office Housing HRLA human rights Human Rights Act human rights news Huntington's Disease immigration India Indonesia injunction Inquests international law internet Inuit Iran Iraq Ireland Islam Israel Italy IVF Japan Judaism judicial review jury trial JUSTICE Justice and Security Bill Law Pod UK legal aid legality Leveson Inquiry LGBTQ Rights liability Libel Liberty Libya Lithuania local authorities marriage Maya Forstater mental capacity Mental Health military Ministry of Justice modern slavery music Muslim nationality national security NHS Northern Ireland nuclear challenges Obituary ouster clauses parental rights parliamentary expenses scandal patents Pensions Personal Injury Piracy Plagiarism planning Poland Police Politics pollution press Prisoners Prisons privacy Professional Discipline Property proportionality Protection of Freedoms Bill Protest Public/Private public access public authorities public inquiries public law rehabilitation Reith Lectures Religion RightsInfo Right to assembly right to die right to family life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia Saudi Arabia Scotland secrecy secret justice sexual offence sexual orientation Sikhism Smoking social media South Africa Spain special advocates Sports Standing statelessness stop and search Strasbourg Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax technology Terrorism tort Torture travel treaty TTIP Turkey UK Ukraine UK Supreme Court unduly harsh USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wind farms WomenInLaw YearInReview Zimbabwe
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