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Archive for February, 2014

New Employment Law Cases

RELIGIOUS DISCRIMINATION
Sunday working
Proportionate means of achieving legitimate aim
Case Mba v The Mayor and Burgesses of the London Borough of Merton [2014] IRLR 145, CA
Facts M was employed by the London Borough of Merton in a children’s home. The home was open seven days a week, 24 hours a day. M believed that her Christian faith required her to observe Sunday as a day of rest. During the first two years of her employment, she did not have to work on Sundays. In 2009 the council insisted that she should work on Sundays, in accordance with her contract. She failed to work on a Sunday and disciplinary action was taken. M resigned and complained of constructive dismissal and religion or belief discrimination.
The employment tribunal stated that it should weigh the discriminatory impact upon M as against the reasonable needs of the employer. It concluded that the requirement to work on Sundays was proportionate. M appealed to the EAT.
Decision 1. The appeal was dismissed.
2. Requiring an employee to work her contractually required hours on a Sunday was not discrimination.
3. Although the requirement caused those who shared her religious beliefs about Sunday working a particular disadvantage, the employer had shown that the requirement was a proportionate means of achieving a legitimate aim.
M appealed to the Court of Appeal which dismissed the appeal and made the following points:
1. Given that it was unacceptable for some Christians to work on a Sunday, the ET should have found that applying this provision, criterion or practice put her at a disadvantage compared with other people who did not share her beliefs. Having done that, it should have gone on to look at whether the council could show a proportionate means of achieving a legitimate aim.
2. Once the council had established that it had no viable or practicable alternative way of running the children’s home effectively, there was only ever going to be one outcome to the case.

TUPE
ETO reason
Administrator
Case Kavanagh and others v Crystal Palace FC (2000) Ltd and others (2014) Morning Star, January 17, CA
Facts K and others were employed by C. C and its stadium went into administration. A buyer was found who wanted to purchase C and its stadium. The administrator made a number of employees redundant. A few days later, the buyer bought C and the stadium. K and others claimed that liability for their dismissals had passed to the buyer. The ET found that the dismissals were connected with the transfer and that the reason for the dismissals was the necessity to reduce the wage bill to keep the business running. This was an ETO reason and liability did not transfer to the buyer. K and others appealed to the EAT.
Decision 1. The appeal was allowed.
The dismissals had been for the purpose of selling the business, although it was not certain that there would be a sale, nor to whom the sale would be.
C appealed to the Court of Appeal.
Decision 1. Liability for dismissals did not pass to the purchaser where the administrator’s objective was to make the business more saleable.
2. Administrators will almost always have a transfer of the undertaking as their ultimate objective. If that was applied as the sole or principal reason for the dismissal, then the ETO exception would hardly ever apply in these types of insolvency.
3. It was only because negotiations for the parallel sale of the stadium dragged on beyond the time during which the administrators could continue to pay all the staff that these employees had to be dismissed.

WHISTLEBLOWING
Detriment
Case Abertawe Bro Morgannawg University Health Board v Ferguson [2014] IRLR 14, EAT
Statute reference Employment Rights Act 1996, s. 47B
Facts F, a GP, disclosed that a partner in her practice had acted incorrectly in prescribing a drug. She claimed that, because of this disclosure, her GP partners had caused her a detriment. She brought five detriment claims. The respondent applied to have three of the claims struck out. The ET refused the application. The respondent appealed to the EAT.
Decision 1. The appeal was dismissed.
3. Section 47B states, in summary, that a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. The words “subjected to” were words of causation and did not require the actor to control the circumstances giving rise to the detriment.
4. The ET had been right not to strike out the claims in advance of hearing evidence of the detailed factual circumstances.


Poverty And The Law

A lawyer with his briefcase can steal more than a thousand men with guns
Mario Puzo, The Godfather

Each wanton judge new penal statutes draw
Laws grind the poor, and rich men rule the law
Goldsmith, The Traveller

Lord Bingham has commented that equality before the law is an aspect of the rule of law. He stated his view that the laws of the land should apply equally to all and that it is the duty of the state to make the machinery of law work alike, for rich and poor.

Poverty and the law
If people are not able to exercise their legal rights because of their poverty, then those rights have no real existence outside legal textbooks. No matter how sophisticated the legal system or how detailed the rules and procedures surrounding such rights, then in reality they do not exist for those who are too poor to exercise them. Without money, many rights under English law are illusory.
For example, English law has a highly-developed and complex set of rules aimed at protecting workers against unfair dismissal. There is a clear general right not to be unfairly dismissed. If a worker is dismissed and he or she reasonably believes that they have been unfairly treated, then in theory they have the right, in some circumstances, to complain to an employment tribunal. If they are a member of a trade union, then the union may pick up the costs of legal advice and representation and bear the risk of paying the other side’s costs.
The rules and procedures surrounding unfair dismissal have become so complex (essentially because of the involvement of lawyers and the adversarial nature of English justice, resulting in a mass of decided cases which interpret complex statutes) that it is very difficult for non-lawyers to exercise these rights themselves.
For the non-unionised worker without money, it is almost impossible to exercise the right not to be unfairly dismissed. The procedural complexity of tribunal proceedings is daunting, and lawyers have made it worse.

The key to understanding the English legal system is the central role of money. I have lost count of the number of my clients who have not been able to start or continue their cases because of lack of money. My conclusion can only be that where legal rights cannot in reality be exercised because of poverty, then those rights have no existence. Their existence, for the poor, is abstract and theoretical. Outside plush solicitors’ offices, barristers’ chambers, legal textbooks and university lecture rooms, legal rights have little relevance for poor people.


Radical Lawyers? An American Example

Tony Serra
Tony Serra, described as a “ponytailed, potsmoking criminal defense attorney famous for fighting the government”, was sentenced to 10 months imprisonment in 2007 for tax evasion. Serra’s reaction was to comment that he could do ten months standing on his head. The blacks loved him the whites loved him, the Hispanics and Asians loved him. He talked law 24 hours a day and he found that people in custody were far more interesting than the bourgeois people who populated society. He would prefer to get down with inmates. They were interesting and dramatic. They had overstepped the bounds of society. Some of it was high principle, some of it was low principle.
Serra served four months in prison in 1976 for failing to file tax returns as a protest against the Vietnam War.
Serra is reported to have no savings and no health insurance. Any money he earns is used to pay for the cases which he takes on free of charge.
When he missed a plane and a key hearing in a trial, the judge was unimpressed when he blamed his absence on “bad karma”.


Bristol Temple Meads

It is a truth universally acknowledged that… Bristol’s traffic is chaos.

George Ferguson, Mayor, has recently begun the consultation procedure with Bristol residents in various locations around the city with regards to the extension of the Residents’ Parking Permit Scheme. However, a lesser known, but just as important, battle regarding Bristol traffic is currently underway in the courts.

First Great Western, who own Bristol Temple Meads, have implemented their own permit scheme, charging £375 (to rise each year) to access the approach road to the station. FGW can’t charge for the taxi rank, but as the road is their property, they can charge those crossing it. The case has been reported here; Jones & Tighilt (on behalf of National Taxi Association) v First Great Western Ltd [2013] EWHC 1485 (CH). While the National Taxi Association lost on a number of points, the case is due for appeal.

The number of taxis has dramatically risen in Bristol over the past few years, from circa 200 to now closer to 900. Our local cabbies have increased competition, alongside the usual escalating costs of motoring. So many taxi drivers we speak to are having to work well into their retirement.

We are closely monitoring developments and will keep you all posted.


Cynical About Most Things But…

After nearly fifty years practice as a barrister, I have become unavoidably cynical about many aspects of human behaviour. Most injustices leave me cold. But I am still passionate about:
1. The lack of proper investigation of war crimes allegedly committed by members of the British government in relation to the Iraq war. This issue is of crucial importance and is a huge stain on the English legal system. Nothing has been done. Prosecuting authorities have concentrated on relatively minor issues such as “benefit cheats” while investigation of the most serious crimes has not been undertaken.
2. Non-payment of wages. In my view, this amounts to modern-day slavery. I have acted for client after client (many from Eastern Europe) who have simply not been paid. I will continue to use all weapons in the legal arsenal to obtain justice (and money) for those exploited workers who have been cheated of their pay, often for hard work in poor conditions.
3. People who read newspapers on the racks in supermarkets (only joking)


More New Health and Safety Prosecutions

Death by crushing: £100,000 fine

Health and Safety Executive v Plasmor (Halton) Ltd (2014) Liverpool Crown Court, February 11

Plasmor (Halton) Ltd has been fined following the death of a worker by crushing.

Significant points of the case

  •       In July 2013 David Astley took a tipper truck of limestone dust to the company’s site in Widnes. The dust was for use by the company to manufacture concrete blocks and slabs.
  • As he was tipping the load, a second driver arrived at the site. As the second driver lifted his trailer, it overturned and fell on top of the cab of Astley’s truck. He suffered fatal crushing injuries.
  • The tipper trucks weighed up to 44 tonnes. The risk of overturning was well known in the industry.
  • The company had failed to carry out a risk assessment for the work. It should have made sure that vehicles were kept a safe distance apart. The person who directed trucks onto the site had not received suitable training.

The company was fined £100,000 plus £28,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

A spokesperson for the HSE is reported to have commented after the case that the company should have known that there was a danger of tipper trucks overturning, and should have created exclusion zones to minimise the risk of anyone being injured. Instead, two drivers were allowed to empty their trailers next to each other.

 

Asbestos exposure risk: trust and two companies fined

Health and Safety Executive v Anchor Trust, Express Elevators Ltd and PC Lifts Ltd (2014) Bedlington magistrates’ court, February 6.

A trust which provides housing for the elderly and two companies have been fined after workers and residents were put at potential risk of exposure to asbestos.

Significant points of the case

  • In November 2012 Anchor Trust contracted E Ltd and P Ltd to replace a lift at its sheltered housing scheme in Alnwick.
  • The lift shaft contained asbestos boards. P Ltd removed the boards without putting any measures in place to prevent the spread of asbestos fibres.
  • Anchor Trust was under a duty to ensure that there was no risk to health from the work. It failed to comply with this duty because it provided E Ltd with conflicting information. Although an asbestos survey was provided, it was not adequately accurate or detailed enough for the work.
  • E Ltd had failed in its duty to plan and manage the work. It had not made adequate inquiries about the presence of asbestos.
  • P Ltd had also failed to make adequate enquiries. It had worked in the lift shaft without adequate lighting, which might have contributed to its failure in identifying the asbestos. Asbestos boards were broken out from the top of the lift shaft but no measures had been taken to prevent the spread of asbestos fibres through the building.

Anchor Trust was fined £10,000 plus £346 costs for a breach of regulation 9, Construction (Design and Management) Regulations 2007 (CDM) for failing to take reasonable steps to ensure that arrangements for managing the project were suitable to ensure that construction work could be carried out without risks to health and safety.

E Ltd was fined £8000 plus £827 costs under regulation 13, CDM for failing to plan, manage and monitor construction work so as to ensure that it was carried out without risks to health and safety.

P Ltd was fined £4000 plus £346 costs under regulation 16, Control of Asbestos Regulations 2012 for failing to prevent the spread of asbestos.

 

Fall death: £250,000 fine

Health and Safety Executive v Aramex (UK) Ltd (2014) Manchester Crown Court, January 31.

Aramex (UK) Ltd, a logistics company, and Gary Edwards, a roofing contractor engaged by the company, have been fined following the death of a worker in a fall.

Significant points of the case

  • In December 2011 Michael Sweet was clearing guttering at the company’s site near Manchester Airport. He stepped on a fragile panel and fell to his death.
  • Aramex had engaged Edwards to repair a leak in the guttering. He employed the deceased.
  • The only safety equipment supplied to the deceased had been a pair of gloves. Safety measures could have included placing boards over fragile roof panels, erecting scaffolding or hiring a cherry picker.
  • Aramex had ignored its own health and safety guidelines. It had failed to supervise the work or assess how it should be carried out, despite knowing that the roof was fragile.

The company was fined £250,000 plus £20,000 costs for a breach of section3, HSW Act, for failing to ensure the health and safety of non-employees.

Edwards was sentenced to four months imprisonment, suspended for one year, under section 2, HSW Act, for failing to ensure the health and safety of employees.


LAW Book Now $5 On Amazon Kindle

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He saw a lawyer killing a viper

On a dunghill hard by his own stable;

and the Devil smiled, for it put him in mind

of Cain and his brother, Abel

 

Coleridge, The Devil’s Thoughts

 

This book is written for non-lawyers and lawyers. It has the following aims:

  • In general, to communicate a highly critical analysis of the current state of English law and lawyers.
  • To continue to emphasise the overwhelming importance of the illegality of the Iraq war.
  • To expose, explain and illustrate the central role of money in the English legal system.
  • To argue, on behalf of non-lawyers, for the simplification, demystification and clarification of English legal rules.
  • To examine the growing involvement of charity in the English legal system.
  • To analyse English law and lawyers from the perspective of class justice.
  • To restate and to publicise neglected voices of dissent on law and lawyers.
  • To discuss the concept of human rights.
  • To illustrate, with recent examples, the significance of health and safety law in the English legal system.
  • To put forward realistic suggestions for alternative legal practice.
  • To discuss the meaning and significance of dissent in the context of legal practice.
  • To challenge existing preconceptions and accepted wisdom about the role of English law and lawyers.
  • To discuss the effect, in a historical context, of revolutionary changes in society on law and lawyers.
  • To raise public awareness and stimulate discussion of the key current issues in English law.

New Health and Safety Prosecution

Health and safety regulations
The recent Scottish case of McKeown v Inverclyde Council (2013) has illustrated the interaction between potentially overlapping sets of health and safety regulations.
The facts, in summary, were that in November 2010 M, a school janitor employed by IC, suffered injuries to his back when he slipped on ice on the top of a fire escape as he was collecting litter and helping to supervise pupils during the morning break. He suffered continuing pain in his back and leg and was unable to return to work as a janitor.
M had been asked to cover for a permanent janitor. He had continued his duties, which included salting paths and playgrounds which were covered in ice and snow. M stated that he did not know of any procedure set out by IC for the work. He proceeded as he had always done and salted the paths and footways, working his way around the school building. His routine was to prioritise the areas which made it safe for staff and pupils to enter the school in the morning. M claimed compensation from IC, alleging breaches of regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992 (WHSWR) and regulation 4 of the Personal Protective Equipment at Work Regulations 1992 (PPE Regs).
Regulation 5 of WHSWR states, in summary, that workplaces must be maintained in an efficient state, in efficient working order and in good repair.
Regulation 12 of WHSWR states, in outline, that workplace floors must be, so far as is reasonably practicable, kept free from substances likely to cause slips, trips or falls.
Regulation 4 of the PPE Regs states, in summary, that except where risks are adequately controlled by other means, employers must provide suitable PPE to employees who may be exposed to those risks.
The decision of the Scottish Outer House was as follows:
1. On the balance of probabilities, M’s version of events was accepted.
2. Ice had been present on the fire escape. IC was in breach of regulation 12 of WHSWR unless it could be shown that it had not been reasonably practicable to keep the fire escape free from ice.
3. IC had devised a system where janitors were instructed to treat pathways leading to the school as a priority and then to treat areas such as fire escapes. It had failed to institute or maintain that system. If the head teacher of the school had been aware of the system, she would have given the fire escapes higher priority. The fire escapes were safety exits.
4. IC should have had a system whereby janitors were instructed to use a scoop which was provided. This would have increased the melting of ice by salt over the whole steps.
5. Regulation 5 of WHSWR did not apply to transient conditions, for example ice.
6. IC was not liable under regulation 4 of the PPE regulations where he was supplied with safety boots and there was no evidence as to the type of the boots’ soles or as to whether metal grips would have provided better traction.
7. M had not been contributorily negligent. He applied slat using his own system without any instruction or training by IC. He had been under pressure of time and it was understandable that some areas were not effectively treated.
8. Compensation of £30,000 was awarded.


New Health and Safety Prosecutions

Crushing death: £100,000 fine
Health and Safety Executive v R & S Recycling Ltd (2014) Worcester Crown Court, February 4.
R & S Recycling Ltd has been fined after an employee suffered fatal crushing injuries.
Significant points of the case
• In February 2011 Kenneth Swabey was working at the company’s site in Redditch. He walked past a stack of bales of waste five metres high. A bale which weighed more than a tonne fell onto him, causing fatal injuries.
• The company had failed to properly control risks to employees working at the site, with regard to the proper storage and stacking of waste materials.
• Stacks of unstable material should slope backwards towards the top. Bales should be interlocked. The stability of the stack should be regularly checked. Where bales may fall, employees should be kept clear.
The company was fined £100,000 plus £57,000 costs for a breach of regulation 10 of the Work at Height Regulations 2005 for failing to ensure that materials and objects were stored in such a way as to prevent risk to any person.

Lead poisoning: £45,000 fine
Health and Safety Executive v Laurence Dennis Brown (2014) Nottingham Crown Court, February 4.
Laurence David Brown, the owner of LDB Light Alloys Ltd, has been sentenced after three workers suffered lead poisoning.
Significant points of the case
• Three workers at the company’s site in Mansfield were making lead sheeting from molten lead. Their work involved scraping solid impurities in a crucible which contained molten lead.
• One of the workers was hospitalised for three weeks and received treatment for more than a year.
• Extraction systems, personal protective equipment, respiratory protection, hygiene and rest facilities were unsatisfactory. No air monitoring or medical surveillance was provided.
• Lunch breaks were taken in a lead-contaminated caravan. Water was collected in lead-contaminated containers. Clothes worn for work were not removed before eating.
• Workers had not been informed about the effects of lead or how to recognise the symptoms of exposure.
Brown was sentenced to six months imprisonment, suspended for 18 months. He was fined £45,000 plus £35,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.


New Employment Case Summaries

CONTRACTS OF EMPLOYMENT
Requirement to work personally
Case Halawi v WDFG UK Ltd t/a World Duty Free UKEAT/0166/13/GE
Facts H worked in a World Duty Free outlet at an airport, selling cosmetic products airside. Her security clearance to do so was withdrawn and she claimed that she had thereby been unfairly dismissed and discriminated against. To claim this she had to show that she was an employee or worker, to do which required her to show that she had a contract with either respondent, if employed by them, by which she undertook to work personally for that party. The employment tribunal found she could not do so, because she provided her services through a limited company which she had incorporated for the purpose (and her relationship with that company need to be, but never was, established in evidence). They were provided to the second respondent whose role was in effect that of an agent supplying workers to a third party to work in retail space controlled by the first respondent. There was thus no contract between H and either respondent. The ET found that the arrangements were such that H was not required to work personally at her job, but could get another person to substitute for her: a power which was not merely theoretical, since she had in fact exercised it. It might appear to a member of the public passing through the airport that she appeared to be working exactly as any employee would, and for that reason the appeal had been permitted to proceed to a full hearing.
Decision On existing appellate authority, which was unaffected by European law, she could not have had a contract of employment with either respondent, since she had a contract with neither; nor could she be a “worker” since that too required (i) a contract, under which (ii) she agreed to work personally.

Terms of contract
Case Cleeve Link Ltd v Bryla [2014] IRLR 86, EAT
Facts B was recruited from Poland. A clause in her contract stated that if her employment was terminated within 6 months, the cost of her airfare and training costs would be recoverable from her wages. Her employment was terminated within the 6 month period. The employer recouped its costs and paid her nothing. B claimed unlawful deduction from wages. Her claim was upheld by the ET which found that the clause was unenforceable as a penalty clause and had not been a genuine pre-estimate of loss. The employer appealed to the EAT.
Decision 1. The appeal was allowed.
2. The deduction had been a genuine pre-estimate of loss.
3. The employment judge had not considered whether there was an extravagant or unconscionable gulf between the maximum amount which could be recovered in a common law action for damages for breach of contract as opposed to the sum stipulated in the agreement.

EMPLOYMENT TRIBUNALS
Time limits
Case Robinson v Fairhill Medical Practice (2014) Morning Star, January 31, EAT
Facts R was summarily dismissed for gross misconduct on July 6, 2011. Her solicitors informed her of this on July 7, 2011. She received a letter confirming her dismissal on July 8, 2011. She lodged claims for unfair dismissal and disability discrimination on October 7, two days after the expiry of the time limit. The ET ruled that the claims were out of time. It had been reasonably practicable for R to have lodged the claims on or before October 6. R appealed to the EAT.
Decision 1. The appeal was dismissed.
2. The effective date of termination was July 7.
3. It was just and equitable to extend the time for the disability discrimination claim because the errors of the solicitor should not be visited on the head of the claimant.