Archive for August, 2012

Unfair Dismissal

The law of unfair dismissal in the United Kingdom operates, essentially, to protect employees from being dismissed for no good reason. Advising clients in relation to possible claims for unfair dismissal involves a number of factual and legal issues, including:

  • Whether the client was an employee. This is a highly technical concept, overlaid with a mass of case law. The crucial deciding factor is normally whether the client had a contract of employment, but this may not be conclusive.
  • The length of time for which the client was employed.
  • The reason for the dismissal. Statutory rules governing unfair dismissal provide a number of reasons which may make a dismissal fair.
  • Whether the employer acted in accordance with prescribed procedures.
  • Whether the employer acted reasonably.

Most readers will be aware that the United States has no National Health Service. They may not know that neither does the US have a law of unfair dismissal. Most employees in America are employed “at will”. This means that either the employer or the employee may end the employment relationship ay any time, subject to the contract of employment and laws prohibiting discrimination. The view of Frederick Place Chambers is that any move to introduce this “hire and fire” philosophy into the English legal system should be strongly resisted.

Corporate Manslaughter Prosecution

R v Lion Steel Equipment Ltd (2012) Manchester Crown Court, July 20

In May 2008 Steven Berry, an employee of Lion Steel, a company which manufactures steel stoarge cabinets, suffered fatal injuries when he fell through a fragile roof panel at the company’s factory in Hyde, Manchester. He had gone onto the factory roof to investigate a water leak when he stepped onto a skylight, falling 13 metres.He had not been provided with adequate fall arrest equipment and crawling boards and had not been given any training on roof work. The company’s insurers had carried out a number of risk surveys which meant that its directors should have been aware that there were inadequate procedures for accessing the roof.

Three of the company’s directors had originally been charged, as individuals, with gross negligence manslaughter and offences under the Health and Safety at Work, etc., Act 1974. At the close of the prosecution case, the Crwon Court judge ruled that there was no case to answer is respect of these individual charges.

Lion Steel Equipment Ltd was fined £480,000 for corporate manslaughter. The judge stated that this represented a 20 per cent reduction in recognition of factors such as the company’s guilty plea and its financial position. He had also taken into account the risk of endangering the jobs of the 142 employees of the company. The company was ordered to pay the fine in four instalments by 2015 and was ordered to pay £84,000 costs.

Health and Safety in a War Context

Comparative health and safety in a war context

Reports of health and safety prosecutions cover, with depressing regularity, incidents involving deaths and injuries caused by crushing. For example, an eighteen-year old worker, crushed by an unguarded industrial machine, lies dying in an English hospital. In Iraq, an eighteen-year old worker, crushed by British and American military operations, also lies dying in hospital. Physically and medically, there is no difference between the two. Both are innocent young human beings whose lives have been cut short by others.

Those responsible for the death of the first young man will almost certainly be prosecuted for health and safety offences and perhaps for manslaughter. His dependants are likely to receive financial compensation for his death. Those responsible for the second will not be held accountable in civil or criminal courts.

What is the difference? Physically, mentally and morally, none. In terms of law, it would probably be argued that the second is an unfortunate victim of an act of war. But we were under the general impression that war is illegal under international law. Not this War, those responsible would respond. But the great majority of international lawyers take the view that the Iraq War was illegal. The legal justification argument carries no weight.

Further arguments, involving political and military expediency, are also invalid. There is no justification for the second death. No justification, whether moral, ethical, legal, political or military. The fact that there is no justification debases legality and warps justice so that it becomes unrecognisable. English law has severed any connection with morality until it condemns the Iraq War and brings the war criminals to trial.

Legal Latin

Customs and Excise Commissioners v Polok and Another (2002)

P and others ran an escort agency. The Customs and Excise Commissioners stated that they should be registered for value added tax. A tribunal ruled that they were not registrable because their business activities were unlawful, consisting of the procurement of women for the purposes of prostitution.

On appeal, Mr Justice Jacob allowed the appeal and ruled that the supply of escorts was lawful. The activities of the escorts and their customers were separate from the service of the taxpayers.

As the Latin poet (Vespasian -Titus Flavius Vespasianus – Roman Emperor from AD 69) said, pecunia non olet (money doesn’t smell). The principle of fiscal neutrality prevents any general distinction in the levying of VAT as between lawful and unlawful transactions. The mere fact that conduct amounts to an offence is not sufficient to justify exemption from VAT.

English law is littered with Latin words and phrases. Many of these survive from the middle ages. Latin was the language for official documents and a number of Latin expressions were created by medieval lawyers. In 1730 an Act was passed which abolished legal Latin. Two years later this was repealed and legal Latin has remained with us ever since.

Examples of often-used Latin words and phrases include:

Et cetera: and the rest

Bona fide: good faith

Ex parte: on behalf of

Mens rea: guilty mind

Nemo dat quod non habet: No-one can give what he does not have

Quantum meruit: as much as has been earned

Causa causans: A judicial statement of 1940 made the following points:

Counsel has strenuously contended that the master’s action was novus actus interveniens, which broke the nexus or chain of causation, and reduced the unseaworthiness from causa causans to causa sine qua non. I cannot help deprecating the use of Latin or so-called Latin phrases in this way. They only distract the mind from the true problem, which is to apply the principles of English law to the realities of the case.

Another example is land law, which has its origins in the feudal system. Student land law textbooks continue to quote “bad” Latin maxims, for example:

Cuius est solum eius est usque ad coelum et ad infero

Quicquid plantatur solo, solo cedit

Durante minore aetate.

The use of legal Latin has been the object of sustained judicial criticism. Examples of this in the context of health and safety are the concepts of res ipsa loquitur and volenti non fit injuria.

Res ipsa loquitur (the thing speaks for itself) is a rule of evidence which may lead to liability for negligence without further evidence.

For example, in the case of Fryer v Pearson (2000) F, a gas fitter, was working at P’s house. As he knelt on the floor, the point of a needle buried in a deep-pile carpet pierced his knee. He claimed compensation from P. It was argued on his behalf that res ipsa loquitur applied, that the incident spoke for itself, and that he therefore did not have to prove negligence. His claim was dismissed. The court ruled that this had been a freak, unfortunate accident. Lord Justice May commented that people should stop using maxims or doctrines dressed up in Latin, such as res ipsa loquitur, which are not readily comprehensible to those for whose benefit they are supposed to exist.

Volenti non fit injuria (the consent to the doing of a harmful act will prevent the recovery of compensation for damage resulting from the harmful act) is reputedly a principle which dates back to Aristotle. An example of its application in the context of health and safety is the case of ICI v Shatwell (1965). Two brothers were employed in a quarry as certified shot-firers. They agreed to ignore their employers’ orders and safety regulations when preparing for blasting. This resulted in one of the brothers being injured in an explosion. He claimed compensation from the employers. The House of Lords ruled that volenti non fit injuria applied. The employers were not liable.

This was the high water mark of the application of the doctrine in employment cases. For two centuries, the doctrine was repeatedly applied in relation to injuries suffered by manual workers. The courts ruled that knowledge of a risk in employment inferred consent to that risk. The doctrine is, thankfully, no longer applied in the context of health and safety.

Mens rea and actus reus

In relation to criminal liability (including health and safety offences) crimes are traditionally divided into mens rea (the guilty mind) and actus reus (broadly, the action forbidden by the law). Despite judicial criticism of this use of bad Latin, the phrases continue to be of crucial significance for the criminal law. The general rule is that the prosecution must prove both actus reus and mens rea.

All current criminal law textbooks analyse crimes according to these concepts.

Lord Diplock commented that it would be conducive to clarity of analysis of the ingredients of a crime if we were to avoid bad Latin and instead to think and speak about the conduct of the accused and his state of mind at the time of that conduct, instead of speaking of actus reus and mens rea.

It is always tempting for lawyers with some knowledge of legal Latin to slip an obscure phrase into their documentation with the aim of confusing or intimidating the other side. This practice is now strongly discouraged by some judges.  For example, in Williams v J. Walter Thompson Group Ltd (2005), the Court of Appeal stated that the use by an employment tribunal of breaking down a long decision into numbered paragraphs, using small roman numerals running up to lxxiii, was not the most user-friendly method available.

The use of legal Latin can also be seen as a manifestation of intellectual laziness, for example the continued description of charitable legal work as “pro bono”. This is discussed in more detail in Chapter 6 (Mystery).

In my experience, in the council estates of South Wales, little else but the perpetuity rule is the topic of conversation.

In Liswerry in 1951 we liked nothing better than to sit before the fireside and discuss, over a glass of dry sherry and a charcoal biscuit, the implications of novus actus interveniens.

I well remember in Liswerry in 1950 how I used to pop next door to number cxxii to borrow a cup of sweet Sauternes, or how I cheered when Newport County won iii to i.

My father worked the night shift in the aluminium works from x to vi.

Actus non facit reum nisi mens sit rea, my father would cheerily remark when he came off the night shift reeking of sweat and machine oil.

Alienatio rei preferatur juri accrescendi, my grandmother would quip as she bandaged up her varicose ulcer before setting off to work as a cleaner.

An even more extreme example of the use of ancient Classical languages in modern English law is a recently published law book which breaks its paragraphs down into Arabic, Roman and ancient Greek numerals. Everyone understands Arabic numerals, some people understand Roman numerals, but very few can translate ancient Greek except, possibly, those readers who have shared a public school education with the author.