Archive for July, 2016

Working class: judicial interpretations

Working classes

The phrase “working class” has significant legal connotations and has been the subject of judicial definition in a number of cases. The courts have had some difficulty dealing with the concept.  For example, in Re Sanders’ Will Trusts (1954) Mr Justice Harman ruled in a case where a will stated that money should be left for providing dwellings for the working classes and their families in Pembroke Dock. The judge stated that a gift for the working classes was not a gift for the relief of poverty and did not have charitable status. He made the following points:

  • The expression “working classes” means persons who have to work for their living.
  • The “working classes” in Pembroke Dock were merely men working in the docks. An element of poverty could not be inferred.

Another example is Green & Sons v Minister of Health (1947) where the court commented:

  • “Working classes” fifty years ago denoted a class which included men working in the fields or the factories, in the docks or the mines, on the railways or on the roads, at a weekly wage. The wages of people of that class were lower than those of the other members of the community, and they were looked on as a lower class. That has all now disappeared. The social revolution in the last fifty years has made the words “working class” quite inappropriate today. There is no such separate class as the working classes.

Again, in Re Niyazi’s Will Trusts (1978):

  • … the adjectival expression “working men” plainly has some flavour of “lower income” about it, just as “upper class” has some flavour of affluence, and “middle class” some flavour of comfortable means. Of course there are impoverished members of the upper and middle classes, just as there are some “working men” who are at least of comfortable means, if not affluence: one cannot ignore the impact of such things as football pools.

We see the spectacle of judges whose experience of manual labour is limited to a few weeks during their university vacations, pontificating on the detail of the working life of those who know the real meaning of work, who have had their health ruined by shift work or who have faced redundancy. Finding against manual workers who have been seriously injured during their employment, delivering judgments in a world so remote from that of ordinary working people’s daily lives that one might as well be in fairyland, except that their arcane rulings can ruin lives.

Sex discrimination: Derbyshire Healthcare NHS Trust: £800,000 compensation


£800,000 compensation

Case  Marks v Derbyshire Healthcare NHS Trust (2016) Eq Opp Rev 269:31, Nottingham ET

Facts M was the director of workforce and organisational development, employed by D. She successfully complained of direct sex discrimination and victimisation.

Remedies    1. Injury to feelings: £15,000 plus £3000 aggravated damages because her complaint had not been treated seriously, there had been no apology and the perpetrator of the discrimination had been leniently treated.

  1. Personal injury: Ongoing stress, anxiety, low mood, traits of trauma, moderate anxiety and depression. £15,500.
  2. Actual loss of earnings: £100,000. Future loss: 12 months plus continuing loss: £190,000.
  3. Pension loss: £168,000 (calculated with advice from a jointly appointed independent expert.
  4. Total award (after grossing up): £832,711.

Disability discrimination: reasonable adjustments: provision, criterion or practice


Reasonable adjustments

Provision, criterion or practice

Case  Carreras v United First Partners Research (2016) Morning Star, July 15, Employment Appeal Tribunal

Facts C, an analyst employed by UFP, suffered a serious road accident and was disabled. He worked no more than 8 hours a day. The employer later required him to work late. He formally objected to this and resigned. He complained of disability discrimination (failure to make reasonable adjustments), relying on a provision, criterion or practice (PCP) that he had been required to work late. The ET accepted that he was a disabled person and that the employer was aware of this. However, there was no requirement that he should work late, but simply an expectation. C appealed to the EAT.

Decision      1. The ET had taken an overly technical and unduly narrow view of the PCP. It should have adopted a real world view of what a requirement was in this context. There had clearly been an element of compulsion.

  1. The case was remitted to the ET to decide the nature and effect of the disadvantage caused by the PCP of working later hours and the steps it might have been reasonable for the employer to take.
  2. A PCP should be given a broad interpretation.

Freelance interpreters: whether employees: Court of Appeal decision

Court of Appeal decision on the meaning of “employee”: freelance interpreters

Case  Secretary of State for Justice v Windle and Arada (2016) Eq Opp Rev 269:25, Court of Appeal

Facts W and A were freelance interpreters for the Courts and Tribunal Service. They were accepted as self-employed for tax purposes. They were only paid for the work which they did. The Service had no obligation to offer them work and they had no obligation to accept work. They complained of race discrimination. The issue was whether they were employees. The ET found that they were not. On appeal to the EAT, the appeal was allowed on the basis that mutuality of obligation was not relevant in determining status for the purposes of the Equality Act 2010. The Service appealed to the Court of Appeal.

Decision      1. The appeal was allowed.

  1. The ET had been entitled to find that the fact that there was no over-arching or umbrella contract which subsisted between individual assignments was a relevant consideration in determining whether or not they were employees.

HIV/AIDS: the Cuban experience: individual human rights versus public health

HIV/AIDS in Cuba

Another extreme example of the contradiction between collective and individual human rights is the reported action of the Cuban government in response to the anticipated HIV/AIDS epidemic.

The Cuban approach was the compulsory testing and quarantining of persons with HIV symptoms. The result of this has been that Cuba now experiences a very low incidence of HIV/AIDS, particularly in comparison with other developing countries. It can be argued that the collective rights of the majority have been safeguarded by breaches of individual human rights of the few. In England, those subject to compulsory quarantine would no doubt have been represented by batteries of QCs earning thousands of pounds a day, probably financed by the taxpayer. Meanwhile, HIV/AIDS marches on.

Emma Goldman on workers’ rights

Emma Goldman (1869-1940)

The young Emma Goldman poured scorn on the inadequacy of campaigning for an eight-hour day. She aimed to expose the capitalist system and demanded its complete overthrow. The eight-hour day was a diversion.

An old worker said that he understood her impatience with such small demands of a few hours less a day, or a few dollars more a week. It was legitimate for young people to take time lightly. But what were men of his age to do? They were not likely to live to see the ultimate overthrow of the capitalist system. Were they also to forgo the release of perhaps two hours a day from the hated work? That was all they could hope to see realised in their lifetime. Should they deny themselves even that small achievement? Should they never have a little more time for reading or being out in the open? Why not be fair to people chained to the block?

Goldman realised that specific efforts for improvement – higher wages, shorter hours and the rest – were part of the revolutionary transformation of society which she believed necessary.

Qualification as a barrister by accident of birth

Qualification as a barrister by accident of birth

In July 2009 it was reported that Prince William had been made an honorary barrister. He is the sixth member of the royal family to be made a Royal Bencher. Others include Princess Diana and the Queen Mother.

300 guests dined in the Middle Temple Hall for the ceremony. William was admitted as a member of the Inn, and called to the Bar, before dinner. He promised not to practise as a barrister except for the odd speeding ticket.

Meanwhile, most of those who struggle to qualify as barristers by studying for law degrees and professional examinations find themselves deep in debt by the time they are qualified. Their chances of finding pupillage, and practising in the profession, are limited in the extreme. Recently, one set of provincial barristers’ chambers received 500 applications for one pupillage vacancy.

On the one hand, the Bar is seen to be making serious efforts to encourage the disadvantaged to join the profession, and to dispel its image as a club for the wealthy and privileged. For example, in February 2008 Ladders2Law was launched by the Social Mobility Foundation, a registered charity which aims to give bright students from financially disadvantaged backgrounds insight into the leading professions through internships and mentoring.

Ladders2Law is a mentoring scheme which links students with a practising barrister or solicitor. This has been described as a hugely important way of reaching bright young people who would not normally have access to relevant information about the legal profession.

On the other hand, the profession is seen to accept qualification by accident of birth.

Liverpool demolition site crushing injuries: £40,000 fine


Demolition crush injuries: £40,000 fine

Health and Safety Executive v Complete Demolition Ltd (2016) Liverpool Crown Court, July 8

Complete Demolition Ltd, a construction company, has been fined following an incident in which a worker suffered serious foot injuries.

Significant points of the case

  • In November 2013 the company was contracted to demolish a school in Ellesmere Port.
  • During the clearance of the site, the driver of a skip wagon attempted to reverse into an area which was occupied by a 40 tonne excavator. A worker was standing in the same area. As the excavator moved, it struck the worker. He fell to the ground and the excavator’s tracks ran over his left foot. He suffered serious crush injuries.
  • The HSE investigation found that arrangements ensuring the separation of pedestrians and vehicles were inadequate. There was insufficient control of workers on the site.

The company was fined £40,000 plus £7000 costs for breaches of regulation 13, Construction (Design and Management) Regulations 2007 and section 2, HSW Act.

English ASBO and social dangerousness in Cuba: what’s the difference?


Cuban criminal justice

Under the 1987 Criminal Code, every socially dangerous action or omission, prohibited by law resulting in a penal sanction, is a punishable crime.

Social dangerousness is defined as habitual behaviour which shows a special proclivity to commit criminal acts, as demonstrated by observed conduct, which is manifestly against the norms of socialist morality. This has resonances with the British concept of anti-social behaviour, where no conviction is required for an ASBO.

There are few examples in Latin America where the criminal justice system is as fair and efficient as in Cuba.

Cuban criminal law includes offences against socialist organization, for example:

  • The misuse of employment in a state enterprise for illegal personal gain.
  • Obtaining money or property illegally channelled from a state economic entity.
  • Trading in foreign currency.
  • Attempting to leave Cuba without complying with formal emigration requirements.

Inmates in Cuban prisons are expected to complete their education to the equivalent of US high school degree level and are also expected to learn a trade.

Prisoners are obliged to work and are paid the same wage which they would expect to receive outside prison.

Prisoners are entitled to conjugal visits every two months.

Leeds adult day care centre death

Day care centre death: suspended prison sentence for support worker

Health and Safety Executive v Tracey Ann Gilboy (2016) Leeds Crown Court, July 8

Tracey Ann Gilboy, a senior support worker, has been given a suspended prison sentence following the death of a severely disabled woman.

Significant points of the case

  • In April 2012 Alison Evans, a 34-year old severely disabled woman, was attending an adult day care centre in Leeds.
  • Ms Evans had not developed a rotary chew, the circular motion which allows food to be ground down for swallowing. Gilboy allowed a sweet to be given to Ms Evans. She choked and later died in hospital.
  • Gilboy had failed to take reasonable care for the safety of Ms Evans in a way which set in motion a chain of events which resulted in her death.

Gilboy was sentenced to 80 days imprisonment, suspended for one year, for a breach of section 7, HSW Act.

Section 7 of the 1974 Act  deals with the general duties of employees at work. In summary, it states that it is the duty of every employee to take reasonable care for the health and safety of himself and other persons who may be affected by his acts or omissions at work.