Archive for the ‘Uncategorized’ Category
For those of us who often find the language of the law incomprehensible, it is worth noting the comments of Jeremy Bentham in the early nineteenth century. Bentham, a campaigner for the demystification of English law, made the following points:
· Laws are expressions of the will of the human lawgiver. This is disguised by the fact that many laws are not expressed in imperative language.
· The use by lawyers of language so complex and different from normal use serves three purposes:
(1) It forms a bond among legal professionals, setting them apart from society and reinforcing their complacency and resistance to reform;
(2) it increases their fees;
(3) it creates an atmosphere of awe.
· Lawyers’ instruments of mystification are devices used to make judges and lawyers appear more than life-size. The use of formal methods of address, robes and traditional apparatus obscures the fact that lawyers and judges are all mere human beings.
“No win no fee”
“No win no fee”, in reality, is a grotesque over-simplification which reflects the naïve innocence of clients. It has developed into an impenetrable jungle of regulations and procedures, mostly concerned with insurance premiums and payments. There is also a significant body of case law dealing with CFAs and their insurance implications.
In outline, a solicitor assesses the chance of success in a case and decides on a success fee to be paid on top of normal fees if the claim succeeds.
This includes the cost of an insurance policy to cover costs if the claim fails.
The introduction of CFAs is another example of the commercialisation of legal practice. CFAs make it less likely that poor claimants with cases which are not overwhelmingly likely to succeed will be able to find professional representation. Claims with a significant risk of failure are not taken on.
Death of worker: construction hire equipment hire company fined £800,000
Health and Safety Executive v AGD Equipment Ltd (2017) Warwick Crown Court, February 10
Statutory reference: s. 3 of the Health and Safety at Work, Etc., Act 1974 (HSWA), regulation 12, Provision and Use of Work Equipment Regulations 1998 (PUWER) and regulation 3, Management of Health and Safety at Work Regulations 1999 (MHSWR).
AGD Equipment Ltd, a construction hire equipment company, has been fined following the death of a worker.
· Mark Seward was testing a hydraulic cylinder when it cracked under pressure. A piece of metal struck him on the head, causing fatal injuries.
· The company had failed to have adequate supervision in place for the work. It had also failed to inform him of the safe working pressure for the cylinder.
· The company had also failed to have protective screens in place to prevent projectiles from striking staff and had not excluded other people from the test area.
The company was fined a total of £800,000 plus £28,000 costs under s.3 HSWA, regulation 12 of PUWER and regulation 3 of MHSWR.
An HSE inspector commented after the case that it was a company’s obligation to provide a safe system of work for leak testing. This included protecting people from flying fragments and high pressure oil leaks as well as providing thorough training in how to carry out the work safely.
Forklift incident: serious injuries: suspended sentences for employers [remove for online]
Health and Safety Executive v Maurice James Blackford and Susan Hawthorne (2017) Worcester magistrates’ court, February 2
Statutory reference: s.2 of the Health and Safety at Work, etc., Act 1974 (HSWA)
The owners of a fencing company have received suspended prison sentences following an incident in which a worker suffered serious injuries.
· In February 2016 Raymond Lansbury, an employee of the company, was helping to dip timber posts and frames in preservative. The timber fell from a metal frame of a forklift truck and struck him. He suffered serious injuries and still requires physiotherapy treatment.
· The company had not been using suitable equipment for the work. the forklift truck operator had not been properly trained and the vehicle had not been thoroughly examined up to required standards.
Blackford and Hawthorne were each fined £10,000 and sentenced to 18 weeks imprisonment suspended for two years, plus a total of £4300 costs for breaches of s. 2 HSWA for failing to ensure the health and safety of employees.
Fall death: £600,000 fine
Health and Safety Executive v Go Ahead London (2017) Southwark Crown Court, February 14
Statutory reference: s.3 of the Health and Safety at Work, ertc., Act 1974 (HSWA).
Go Ahead London, a bus company, has been fined after a worker suffered fatal fall injuries.
· In May 2011 a worker was using a ladder to access the top of a fuel tank. He fell two and a half metres and suffered fatal injuries.
· The company did not implement and keep to its own procedures for managing contractors. As a result it failed to manage contractors effectively or to ensure that they worked in a safe manner.
The company was fined £600,000 plus £78,000 costs under s.3 HSWA for failing to ensure the health and safety of non-employees.
An HSE inspector commented after the case that the case had been entirely preventable.
Issues not raised in claim form
Case Perry’s Motor Sales Ltd v Edwards (2017) Morning Star, February 17, EAT
Facts E was given a first and final written warning in May 2014 after he was found guilty of tampering with company paperwork. Some months later he submitted a false claim for work done on a car. He admitted the offence. He did not gain individually from either offence. He was dismissed for breaches of trust and confidence. He complained of unfair dismissal. The ET upheld the complaint, finding that the first written warning had been outside the band of reasonable responses, that the employer had not carried out a reasonable investigation and the situation would not have arisen if the employer had provided E with training and support on its procedures. The employer appealed to the EAT.
Decision 1. The appeal was allowed.
2. E had not raised the issue of the validity of the first warning. The tribunal had taken it upon itself to look behind it.
3. It had been an error of law for the tribunal to decide a point which it had not been asked to consider.
4. By putting the issue of the warning at the heart of its considerations, the tribunal had failed to consider the fairness of the dismissal against the existence of a valid final written warning. The matter was remitted to a different tribunal for rehearing.
Trade union purposes
Case Metrolink RATPDEV v Morris UKEAT/0113/16/RN
Facts M, a union representative, was dismissed because his employer believed that he had obtained and shared sensitive company information. He complained of unfair dismissal. The employment tribunal found that the dismissal had been automatically unfair. M had acted in the capacity of union representative, storing and sharing the information because of concerns raised with him by members. M had referred to the information in a collective grievance letter. The employer appealed to the EAT.
Decision 1. The appeal was allowed and the matter remitted for rehearing.
2. The employment judge had not considered the real issues in the case. She had failed to consider whether a dismissal for the wrongful or unlawful retention of confidential information for trade union purposes enjoyed the protection of section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992.
Section 152 states, in summary, that it is unlawful to dismiss an employee for joining or not joining a union, taking part in its activities, using its services or refusing to accept an inducement.
HEALTH AND SAFETY
Assault after Christmas Party
Case Bellman v Northampton Recruitment Ltd  IRLR 124, High Court
Facts B, an employee of N, went to the company’s Christmas party. After the party, a number of guests went on to a hotel and carried on drinking. The company’s managing director assaulted B in an unprovoked attack. He punched B twice. B struck his head on the floor and suffered serious brain damage. He claimed compensation from the company.
Decision 1. The company was not liable.
2. The assault was committed after and not during an organised work social event.
3. The managing director could not always be considered to be on duty.
4. There was a temporal and substantive difference between the Christmas party and the drinks at the hotel. Given the time and place, no objective observer would have seen any connection with the jobs of the employees present.
5. There was an insufficient connection between the position in which the managing director was employed and the assault to make it right for the comnay to be held liable.
A recent, sinister development in the human rights industry has been the preparedness of mainly American, but also some English academics, to “debate” the legality of torture. The prospect of academic lawyers “debating” the proposed legalisation of torture is appalling. There should be no “debate”. Torture is non-negotiable. This is beyond discussion in most civilised countries.
Article 3 of the European Convention on Human Rights states that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment. This provides absolute protection. In no circumstances can such treatment be made legal. States are never able to argue that such treatment is acceptable or justifiable. The drafters of the European Convention had experience of legalised torture under the Nazi regime. They were determined that this would never be repeated.
The definition of torture, and its distinction from inhuman or degrading treatment, is problematic. Article 1 of the UN Convention against Torture gives the following definition:
Torture means any act which by severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third party information or a confession.
In 2005, in the case of A and Others v Secretary of State for the Home Department, seven Law Lords decided unanimously that evidence which may have been obtained by torture is inadmissible in English courts, regardless of where or by whom the alleged torture has been perpetrated.
This judgment was described as the leading judgment on torture which would reverberate around the world, putting beyond doubt that the ban on torture was absolute in civilised countries.
Lord Bingham commented that from its earliest days, the common law set its face firmly against the use of torture. The principles of the common law, standing alone, compelled the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency, and incompatible with the principles which should animate a tribunal seeking to administer justice. Torture was prohibited by statute in 1640 in England and in 1708 in Scotland.
Those who seek to “debate” the legalisation of torture have introduced, as justification, the “ticking bomb hypothetical”. This is a devised scenario involving a large number of lives at stake in the immediate future, where the torture of suspects is the only means of dealing with the threat. It has been suggested that there is anecdotal evidence that this scenario has some basis in reality. Those who put forward this argument have never produced independent evidence to support their claims.
Academic discussions of legal torture conveniently avoid the realities of the torture chamber. For example:
Apparently, there is a huge body of academic research into the legalisation of torture. It should be asked whether these researches, presumably funded in part by the taxpayer, are more worthwhile than, for example, the reasons why there are only two Law Centres in the Southeast of England outside London, or the effects of the abolition of legal aid in most civil cases on the most vulnerable and deprived members of society.
The appalling realities of the torture chamber have been examined by the European Court of Human Rights in a number of cases. For example in the Greek case (1969) torture took the form of falanga (the beating of the soles of the feet with a wooden or metal stick or bar) which, if skilfully done, breaks no bones, makes no skin lesions and leaves no permanent and recognisable marks, but causes intense pain and swelling of the feet; severe beatings of all parts of the body; the application of electric shock; mock execution and threats to shoot or kill the victim; squeezing of the head in a vice; pulling out of the hair from the head or pubic region; kicking of the male genital organs; dripping water on the head and intense noise to prevent sleep.
This illustrates the horrific reality of the torture chamber. If falanga is to be “skilfully” applied, then its practitioners will have to be trained. Torturers must develop the skills of extracting information by the use of very severe and cruel suffering without killing the victim or, in an ideal world, leaving no permanent and recognisable marks. Can anyone seriously contemplate a legalised training school for torturers in Britain?
In 1949, during discussion on the proposed Universal Declaration of Human Rights, the British representative at the United Nations is reported to have made the following comment:
All forms of torture, whether inflicted by the police, military authorities or members of private organisations, are inconsistent with civil society, are offences against heaven and humanity and must be prohibited. This prohibition must be absolute and torture cannot be permitted for any purpose whatsoever, either for extracting evidence, to save life or for the safety of the state. It would be better for society to perish than for it to permit this relic of barbarism to remain.
The last word on torture should go to Albie Sachs, who was subjected to torture by sleep deprivation by the South African security forces. He makes the point that his experience was not the hypothetical situation of the kind discussed by some academics in relation to the costs and benefits of governments using torture. In his case, as in 99.9 per cent of torture cases, there was no ticking bomb. The object of the torturers was not to obtain information but to humiliate and degrade their victim so as to achieve power and dominance.
In 1988, Sachs lost an arm and the sight of an eye when his car was bombed by South African security agents. It appears that he was bombed because he was an intellectual who challenged the claim of the South African apartheid government that no political system could be found to enable black and white to live together as equals in South Africa.
Sachs makes the point that when the African National Congress was a liberation movement in exile, a Code of Conduct was drawn up which prohibited torture in any circumstances.
Lord Bingham has pointed out that the Bush administration rewrote the definition of torture to mean “physical pain of an intensity akin to that which accompanies serious physical injury such as death or organ failure”. This excludes “enhanced interrogation techniques”.
Recent disclosures have indicated that the United Kingdom has been involved in torture. In January 2010 the UN Human Rights Council declared that the UK had been complicit in the rendition, unlawful detention and torture of terror suspects.
In the case of Binyam Mohamed (a torture victim), the Court of Appeal stated that MI5 had failed to respect human rights, deliberately misled Parliament and had a culture of suppression which undermined government assurances about its conduct. The lawyer acting for the government demanded that the Court of Appeal should change the wording of its judgment to be less critical of MI5.
The recent Bristol employment tribunal decision in the case of McFarlane and Ambacher v Easyjet Airline Co Ltd has given guidance on the application of the Management of Health and Safety at Work Regulations (MHSWR) in the context of breastfeeding by employees. The case illustrates the application of health and safety law, and employment law in general, in this context.
B and A were female cabin crew members employed by Easyjet .They wished to continue breastfeeding their children after returning to work at the end of their maternity leave. They were advised by their GPs that they should ask for their shifts to be limited to eight hours. There were no suitable facilities for expressing milk on board aircraft. The GPs advised that working longer shifts would increase the risk of the development of mastitis.
Easyjet refused to agree to the requests. It failed to conduct a risk assessment and showed a strong reluctance to create bespoke shift patterns because of possible operational difficulties, given the need to deal with possible flight delays. The employment tribunal found that the treatment of B and A amounted to indirect sex discrimination. It took into account evidence that the company had been able to create bespoke shifts for another crew member who suffered from deep vein thrombosis, and evidence that flight delays were not as common as the company had suggested.
Regulation 16(1) of MHSWR imposes an obligation on employers to carry out a specific risk assessment where women of childbearing age or new or expectant mothers may be at risk from a work process, working condition or physical, chemical or biological agent. New or expectant mothers are defined as women who are pregnant, who have recently given birth or who are breast feeding.
New or expectant mothers may also be suspended from night work if a doctor or midwife signs a certificate stating that such work should be suspended on grounds of the woman’s health and safety.
Regulation 16(2) requires employers to change working conditions or hours if it is reasonable to do so to avoid such risks. If such steps would not be reasonable or would not avoid the risks, regulation 16(3) imposes a requirement to suspend an employee on medical grounds, subject to the employee’s right to be offered alternative work.
If no alternative work is available, the employee has a right to be paid while suspended on maternity grounds. This includes suspending a woman because she is breastfeeding a child. The tribunal in the Easyjet case found that the company had in effect suspended B and A by failing to offer them reduced hours, knowing that they had received medical advice not to accept longer shifts. They were therefore entitled to claim for pay during the suspension.
The tribunal referred to the World Health Organisation paper on Mastitis causes and management which identifies full-time work as a factor influencing the risk of mastitis, because of long intervals between feeds and lack of time for adequate milk expression.