Archive for January, 2014

Queen’s Counsel

Queen’s Counsel
The rank of QC (Queen’s Counsel) has been awarded, for at least 400 years, to advocates (mostly barristers) who have been recognised, within their own profession, as having shown particular skill and expertise in the conduct of advocacy.
This rank, known as “silk” because QCs wear silk gowns, casts light on a number of features of the legal profession and the English legal system.
The reality is that senior barristers (and a few solicitors), predominantly white, male, public school and Oxford or Cambridge educated, are selected to become QCs (or KCs if the current occupier of Buckingham Palace is a male).
These are the chosen elite of the Bar, who line themselves up for judicial appointment. But the most important point about taking silk is that the barrister’s income can double overnight. This was expressly recognised in the Office of Fair Trading Report of 2001.
It is very difficult to find hard evidence of QC’s earnings. For example, Part 48 of the Civil Procedure Rules sets out a table of guidelines for counsel’s fees. It states that the table does not include any figures in respect of leading counsel (QC)’s fees, since such cases would self-evidently be exceptional.
Anecdotal evidence about QC fees includes a charge of £5000 for an hour’s telephone advice in an insurance-funded commercial dispute.
The QC appointment system, which is regarded with incredulity outside the United Kingdom, was based for centuries on an opaque series of informal soundings. In 2001 the Office of Fair Trading called for the abolition of the rank. It stated that it did not operate as a genuine quality accreditation scheme but rather as an informal quota which raised fees. The OFT went on to make the point that, even if it could be shown that the QC appointment system was transparent, objective and non-discriminatory, and operated as a genuine quality mark, it was of questionable value to consumers. The Malleson Report on QCs concluded that the selection process was riddled with indirect race and sex discrimination.
In November 2004 the Bar Council and the Law Society concluded an agreement on the reform of the QC system. The following points emerged:
• The new process served the public interest by offering a fair and transparent means of identifying excellence in advocacy in the higher courts.
• The title QC was an important reference mark for those who chose to purchase the highest quality advocacy services.
• The rank of QC was the recognition of excellence for advocacy in the higher courts.
• In April 2003 the award of Silk was suspended. The Lord Chancellor commented that if Silk disappeared, those receiving the award would be the last in an illustrious line of leading counsel recognised by the state as leaders of the profession.
• There was wide acceptance that abolition of the QC title would damage the international reputation of English law, would close a route to diversity and would weaken the administration of justice. It was not explained exactly how the abolition of the QC concept would “close a route to diversity” or affect the reputation of English law.
• Key features of the new system included an independent selection panel and letters patent from the Queen.
One expressed aim of the new selection system was to increase diversity. An application for silk now costs £2200 with a further £3500 fee for acceptance of the award if it is granted.
Another aim of the new procedure was to deal with “mischiefs about the tap on the shoulder and that it all happened in smoke-filled rooms”. One view of the new procedure is that the old, informal system has been replaced by a financial hurdle. On the other hand, it has been argued that people seeking appointment as QCs should be able to afford this, and that there was no evidence that people would be deterred from applying by the cost.
One effect of the new procedure for applying for the QC designation is that it has generated, as is common in the English legal system, another layer of profit-making. Consultancy services have been set up to coach applicants through the “long and daunting” application and interview process. One such consultancy offers detailed advice on how to fill in the application form, the selection of assessors and referees, coaching on the interview process and in-depth training and coaching on all competency areas.
The consultancy company offers, for a fee, a tailored programme to prepare and coach applicants for QC status. The programme includes advice on preparing the application form, the choice of referees, a template for referees, coaching on the interview process and training on all competency areas including integrity and diversity. The company’s publicity states that 100 per cent of applicants who took part in this scheme were successful with their applications. It includes the following:
• Do you want to have a successful QC interview, make more money and gain the respect of your peers and clients?
• We provide CONFIDENTIAL results-focused coaching.
• We will help you with your interview preparation.
• We will help you answer the very difficult questions on DIVERSITY. 40 per cent of applicants fail because they give the WRONG answers on DIVERSITY.
• The interview is a MINEFIELD.
One of the most disillusioning aspects of the radical edge of the legal profession is that the soundest, ablest, most courageous and sympathetic progressive lawyers all seem to accept the offer of Silk. Like Herbert Read (the anarchist who said yes to a knighthood), it is very hard to turn down.
The late John Mortimer QC repeatedly ridiculed the pomp, ceremony and fancy dress surrounding the formalities of becoming a QC. His Rumpole stories included the description of QCs as “Queer Customers” and referred to the wearing of silk stockings and suspender belts. It would be interesting to know why he was prepared to go through with the pantomime. But very few people can resist the lure of £200,000 a year.
Recent efforts to reform the QC appointments procedure have been hailed as moving the system away from a closed cabal populated by chaps who were at school, university and chambers together.
The main practical significance of the status of Queen’s Counsel was, and remains, the doubling of fees.
The rank of honorary QC – known as Queen’s Counsel honoris causa – is awarded to lawyers who have made a major contribution to the law of England and Wales outside practice in the courts. Traditionally, it has been awarded to distinguished legal academics and some lawyers in public service for achievements beyond their normal responsibilities. It is not a working rank. It cannot be used in practice as a lawyer and holders are strongly discouraged from exploiting the rank to attract business.
The Law Society Gazette commented that perhaps it was time to take another step towards modernity and consign Silk to the history books.
Peter Herbert, the Chair of the Society of Black Lawyers, is reported to have commented that the increased fees would make it harder for ethnic minority lawyers and women to apply because they often had lower earning capacity than their white or male comparators.

New Health And Safety Case: Death of Apprentice

Death of apprentice: £75,000 fine
Health and Safety Executive v Tyne Slipway & Engineering Co Ltd (2014) Newcastle Crown Court, January 21.
Tyne Slipway & Engineering Co Ltd (TSECL) has been fined following the death of an apprentice.
Significant points of the case
• In December 2011 Jason Burden, a 19 year old apprentice engineer at TSECL, was reassembling a tunnel thruster from a ship at the company’s site in Sunderland. The tunnel thruster was a gearbox and propeller used to manoeuvre a ship.
• The piece of machinery, which weighed almost one tonne, toppled onto him. He suffered fatal crushing injuries. The machinery was notionally stable but the company had not taken sufficient steps to ensure that it was safe to work on.
• The company had no documented risk assessment for working on the machine while it was positioned on a workbench. There was no documented safety management system for undertaking work on behalf of the thruster manufacturer.
TSECL was fined £75,000 plus £47,900 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.

New Health And Safety Prosecutions

Unguarded machinery: £8000 fine
Health and Safety Executive v Eccleshall Developments Ltd (2013) Sheffield magistrates’ court, December 20
Eccleshall Developments Ltd has been fined after an employee was injured by an unguarded angle grinder.
Significant points of the case
• Sam Ashford, an employee of the company, was using an angle grinder on a stone block while landscaping a domestic property in August 2011.
• The grinder kicked back and lacerated his left leg. The wound required 12 stitches and he was unable to work for several months.
• The angle grinder was unguarded. This left the blade completely exposed. The company had failed to check whether Ashford could use the machine correctly and had not given him suitable protective equipment.
The company was fined £8000 plus £8900 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

Release of toxic substances: £120,000 fines
Health and Safety Executive and Natural Resources Wales v Archimica Chemicals Ltd and Euticals Ltd (2013) Mold Crown Court, December 13
Two pharmaceutical companies have been fined for multiple health and safety and environmental breaches.
Significant points of the case
• In November 2011 methyl iodide, a highly toxic substance which can affect the central nervous system, was released into the atmosphere at the companies’ site in Flintshire, because of poorly written procedures.
• In February 2012 an agency worker was exposed to the same substance because he was provided with inadequate respiratory protection.
• In June and July 2012 a worker was exposed to the same substance after having been given inadequate decontamination training.
• In July 2012 a worker suffered severe and permanent injuries following exposure to the same substance, having been issued with poorly fitting respiratory protection.
• In November 2012 three workers were exposed to dichloromethane, a hazardous substance with potentially fatal effects, when a process vessel overflowed.
Both companies were prosecuted under sections 2 and 3, HSW Act. Euticals Ltd was prosecuted under the Environmental Permitting (England and Wales) Regulations 2010.
Archimica was fined £80,000.
Euticals was fined £40,000.
Both companies are now in liquidation and it is reported that the site is being decommissioned.

New Case On Psychiatric Injury

Psychiatric injury


Application of Johnson v Unisys

Case Monk v Cann Hall Primary School and Essex County Council [2014] PIQR P3, CA
Facts M was employed as an administrative assistant at CH school. In 2008 ECC told her that she would be made redundant on August 31, 2008. In July 2008 the school governors decided that she would be denied access to the school before the end of term. She was required to clear her desk and hand in her keys and was escorted from the premises in front of teachers, parents and pupils. She was not told why this was done.
M brought proceedings for unfair dismissal and defamation. Both these claims were settled.
In July 2011 M brought an action for personal injury on the basis that she had suffered psychiatric injury as a result of the way in which she had been treated at the school. Essex CC admitted liability and admitted that it had failed to exercise reasonable care in the manner in which it brought the claimant’s employment to an end.
Essex CC then became aware of the decision in Johnson v Unisys, which limited the right of an employee to recover loss caused by the manner of his dismissal. It then applied to withdraw its admission and for the claim to be struck out as disclosing no reasonable cause of action. These applications were granted. M appealed to the Court of Appeal, arguing that her employment did not end until August 31 and was not therefore affected by Johnson v Unisys.

Decision 1. The appeal was allowed.
2. If M’s exclusion from the school from the school on July amounted to a dismissal, then the manner in which it was carried out was probably too closely related to the dismissal itself to escape the effect of Johnson v Unisys. If the exclusion was nothing more than an incident occurring during the period of her employment, it was difficult to see how it was sufficiently related to the dismissal to fall within the exclusion area.
3. It was not an abuse of process for M to argue that her employment ended on August 32, 2008.
4. The claim should not be struck out.

Psychiatric Injury

Robbery of Betting Shop

Case Nicholls v Ladbrokes Betting & Gaming Ltd [2014] PIQR P4, CA

Statute reference Management of Health and Safety at Work Regulations 1999; Workplace (Health, Safety and Welfare) Regulations 1992

Facts N was employed by L as a cashier. In November 2007 the betting shop where she worked was robbed by two armed and masked men. N suffered psychiatric damage. She claimed compensation from L, alleging:
• Negligence in that L had failed to keep the front door of the premises locked by operating the magnetic lock fitted to it.
• Breach of statutory duty in failing to carry out a proper risk assessment required by the 1999 Regulations.
• Failure to provide suitable lighting in breach of the 1992 Regulations.
L denied all the claims.
At first instance, the claims succeeded. The judge found that the defence evidence was unsatisfactory and included deliberate falsehoods. No risk assessment document was produced. No policy or guidance had been laid down in relation to the use of the magnetic lock, other than at opening and closing times, and it should have been in use during the hours of darkness. Proper lighting should have been maintained outside the premises.
N was awarded £9000 compensation. L appealed to the Court of Appeal.

Decision 1. The appeal was allowed.
2. The trial judge had not been allowed to find on the evidence that there had been no proper risk assessment dealing with the risk of robbery at L’s premises.
3. The betting shop had been designated as at low risk of robbery because of its location.
4. The use of the magnetic lock was within the discretion of the manager on duty at the time.
5. N had not shown that the installation of a magnetic lock at a betting shop was perceived within the industry as an essential security measure.
6. There had been no previous robbery at the premises and no particular or heightened risk was perceived to attach to them.

A previous case with similar facts is that of Dutton and Clark v Daly (1985). D was employed as a clerk by a building society. The office in which she worked was protected by heavy glass, alarms, a steel plate and a dummy camera. There were two armed robberies. D resigned because she was too frightened to continue working at the office. She complained of unfair constructive dismissal for failure on the part of her employer to provide a safe system of work. The industrial tribunal (as it then was) upheld her complaint on the basis that the precautions had been inadequate. The employer appealed to the Employment Appeal Tribunal (EAT). The appeal was allowed. The test was an objective one. The question for the tribunal was whether the precautions which had in fact been taken were those which would have been taken by a reasonable employer.
Another earlier case is Keys v Shoefayre Ltd (1978). Following an armed robbery at a shoe shop in Peckham, the shop staff asked the manager what he proposed to do to protect them. He replied that there was little that he could do. Three weeks later there was another armed robbery. K, a member of staff, resigned and complained of unfair constructive dismissal. The industrial tribunal decided that the company’s failure to take any steps for the employee’s safety amounted to constructive dismissal. It was a fundamental term of contract of employment that an employer would take reasonable care to operate a safe system of work and take reasonable care to have reasonably safe premises.
A related example is the case of Panting v Whitbread plc (1998). P was employed as a pub manager from 1989 until 1993. He claimed that throughout this period he, his wife and employees were subjected to violence, threats, thefts and burglaries. He stated that this had caused him to suffer permanent psychiatric damage in the nature of anxiety and depression. P’s action was based on an alleged breach of the implied term of his contract of employment that the employer would take all reasonable precautions for P’s safety. P claimed that the employer knew that the pub was a difficult one but had given him no formal training and had failed to look after him. He claimed compensation in the county court. The claim failed for the following reasons:
1. P was not significantly more vulnerable than the average person.
2. He was qualified to run the pub without formal training because of his previous experience in the trade.
3. It had been reasonable for the employer to ask P to run the pub despite its difficulties.
4. P had not notified his employer of the assaults.
5. The employer had in place a comprehensive set of arrangements aimed at managers who suffered in the same way as P. It had done as much as was reasonably required in the circumstances.

Disability Discrimination Case Summaries

Increased workload
Case Burke v Clinton Cards plc & Walker (2012) Eq Opp Rev 32:221
Facts Mrs B was employed by CC as an area sales manager. She was diagnosed as suffering from breast cancer. Her employers made adjustments by reducing the number of stores for which she was responsible. W took over as a new regional manager. He increased Mrs B’s workload and criticised her performance. He did not take account of the effect of her medical treatment on her work. Mrs B resigned and complained of constructive dismissal and disability discrimination.
The complaints were upheld.
Compensation award:
Actual loss of earnings: £24,838.
Future loss of earnings: three years: £42,371. Note: the tribunal would have favourably considered a claim for career-long loss of earnings, but this had not been included in the schedule of loss.
Pension loss: £6,698.
Loss of company car: £10,134.
Injury to feelings: £14,000: cumulatively caused distress: upper end of middle Vento band.

Non-disabled person compared
Case JP Morgan Europe Ltd v Chweidan [2011] IRLR 673, CA
Facts C was employed by JPM as an executive director. In 2007 he suffered a serious back injury. He returned to work for restricted hours. C complained that his 2007 bonus had been reduced because of his disability. He was dismissed for redundancy and complained that his selection for redundancy had been because of his disability. The employment tribunal found that he had been unfairly dismissed and subjected to direct disability discrimination. JPM appealed to the EAT and then to the Court of Appeal.
Decision 1. The tribunal’s decision in relation to direct discrimination could not stand. A non-disabled person would similarly have been dismissed

Associative amnesia
Case Sobhi v Commissioner of Police of the Metropolis (2013) Eq Opp Rev 239:25, EAT
Facts S was a police community support officer. She applied to become a police officer. Her fingerprints were taken and this revealed that she had been convicted of theft in 1991 and had been given a conditional discharge. Her application was refused and she was given a disciplinary reprimand for failing to disclose a previous conviction. In 2009 she applied again to become a police officer and disclosed her conviction. Her application was again refused because of the reprimand. S complained of disability discrimination. She suffered from dissociative amnesia. The ET found that her loss of memory only affected her application to become a police officer and that her condition had not adversely affected her normal day-to-day activities. S appealed to the EAT.
Decision The appeal succeeded. Although her condition had only affected her when applying for a post, that was to be treated as a normal day-to-day activity because it limited her participation in professional life.

Disability Discrimination: Sample Of New Publication

Continuing act
Case Novak v Phones 4U Ltd [2013] Eq LR 349, EAT
Statute reference Disability Discrimination Act 1995
Facts N complained of disability discrimination following comments posted on Facebook by workmates. The issue was whether two sets of postings, with a gap of 7 weeks between, were a continuing act. The ET found that the complaint was out of time. Although the second posting was linked to the first, it did not involve the same individuals and the subject matter was different. N appealed to the EAT.
Decision The appeal was allowed. N had a good arguable case that the events complained of were a continuing act.

Continuing act
Case XX v UKBA UKEAT/0546/11/DM
brought another claim which was also dismissed on the basis that the tribunal had already adjudicated that he was not disabled. He brought other claims in 2010. The tribunal ruled at a pre-hearing review that it had no jurisdiction because there was no continuing act and they were out of time, and the principles of issue estoppel applied. XX appealed.
Decision 1. The appeal was upheld.
2. It was arguable that there was a continuing act and the matter should go to a full hearing.
3. Issue estoppel did not apply because XX’s disability status had changed since 2005.

Claim against fellow employee
Case Barlow v Stone [2012] IRLR 898, EAT
Statute reference Disability Discrimination Act 1995, ss. 4, 17A, 57, 58
Facts B complained that S, a fellow employee, had colluded with a director of his employing company to make a false complaint to the police about him, motivated by malicious intent resulting from the fact that B had lodged a tribunal claim alleging disability discrimination. The ET ruled that it did not have jurisdiction because the fellow employee was not an employer or a potential employer. B appealed to the EAT.
Decision 1. The appeal was allowed.
2. Victimisation was a form of discrimination for the purposes of Part II of the 1995 Acr.
3. The allegations in B’s claim would have amounted to a viable claim of unlawful discrimination against the employing company.

No contract of employment
Case X v Mid Sussex Citizens Advice Bureau [2011] EWCA Civ 28
Statute reference Disability Discrimination Act 1995, Pt II, s.4
Facts X was disabled. She worked as a volunteer for MSCAB. Her agreement with her employer was described as having a binding effect in honour only and was not a contract of employment. X was given training for nine months and then carried out a wide range of advice work. She was asked to stop attending as a volunteer and she complained of disability discrimination. Her complaint was rejected by the employment tribunal and the EAT. She appealed further to the Court of Appeal. On behalf of X, it was argued that her voluntary position was a stepping stone to employment and was an arrangement for the purposes of the 1995 Act. It was also argued that the voluntary post was a form of vocational training.
Decision 1. The appeal would be dismissed.
2. The aim of the arrangement was to provide advisers and not to create potential employees.
3. Vocational training involved training for a job. MSCAB had not intended to do this.