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Petter considers the recast Brussels regulation on jurisdiction and the recognition and enforcement of civil judgments in an employment dispute, and provides useful guidance on the ambit of the regulation and the availability of an anti-suit injunction to enforce it... To read the full article by Cloisters' Jacques Algazy QC and Fiona Bolton, Eversheds, published in this month's ELA Briefing click here.
Cloisters’ Head of Human Rights and Civil Liberties Group, Schona Jolly will join a panel of experts to speak on the latest Equality and Human Rights issues at the Justice Annual Human Rights Law Conference on 12 October 2015. The conference, aimed at all human rights lawyers, offers a great opportunity to update legal knowledge, gain valuable insight into human rights issues and also earn 6 CPD points. Venue: Freshfield Bruckhaus Deringer, Tudor Street, London, EC4Y 1HT. Time: 09.00 am – 5.00pm. For further details and booking information click here.
Tamar Burton’s article “Memory and Clinical Negligence Trials: Tressider v Royal Cornwall Hospitals NHS Trust” published in this month's edition of PI Brief Update Law Journal considers Cloisters' barrister Simon Dyer’s recent case and the role of lay witness recollection in clinical negligence claims. In Tressider v Royal Cornwall Hospitals NHS Trust  EWHC 1262 (QB) the court had a single liability issue to determine: did a child present with a visible scoliosis of the spine in November 2000 and November 2001? The orthopaedic experts agreed that had the scoliosis been visible on either consultation there was a causative breach of duty. The court was
By Rachel Crasnow QC and Siân McKinley Since C-303/06 Coleman v Attridge Law, a person may bring a claim for direct discrimination if they are treated less favourably because they are associated with a protected characteristic, such as disability or race, even if they do not share that protected characteristic. In C-83/14 CHEZ Razpredelenie Bulgaria AD the CJEU has upheld a claim for indirect discrimination by association. In doing so CJEU may have changed the way we view the boundaries between direct and indirect discrimination. Employment lawyers had some warning that this might occur after the opinion of Advocate General Kokott in
By Jason Galbraith-Marten QC The government has just announced its intention to ban smoking in all prisons in England and Wales. No doubt such a ban will be challenged as an unlawful interference with prisoners’ rights. A recent case from the Court of Session (Inner House) in Scotland may give an indication about how such a challenge will fare. In M v State Hospitals Board for Scotland  SC 112 the Court allowed an appeal against the decision of Lord Stewart sitting in the Outer House and ruled that a comprehensive smoking ban at the State Hospital for those detained by
Cloisters is delighted to announce that Catherine Casserley has been appointed specialist adviser to the House of Lords’ Equality Act 2010 and Disability Select Committee. This is a part-time role and Catherine remains in full-time practice at Chambers. The Select Committee was appointed on 11 June to consider the impact of the Equality Act 2010 in relation to how it serves disabled people. The Act was intended to harmonise discrimination law and strengthen the law to support progress on equality. The Select Committee on the Equality Act 2010 will ask how effective this legislation is. Areas that the Committee will consider include: The
Sally Cowen successfully represented the new care provider in this test of when staff TUPE to a new provider within the care industry. This will have impact on many re-tender situations in the care industry, where cutbacks are being made to the service provided. The ET (Leicester) has decided that where a re-tender exercise for housing support services resulted in a different provider taking on the work, there was no ‘service provision change’ under Reg 3(2A) TUPE 2006. C had been a support worker at a residence, providing support to disabled young people, living independently. She and her colleagues provided 24/7
Cloisters is delighted to announce that David Massarella and Claire McCann have been appointed to the B panel of the Attorney General’s Panels of Junior Counsel to the Crown. The appointment will take effect from 1 September 2015 and will run for five years.
FirstGroup Plc v Paulley The Supreme Court today (8 July) granted the Appellant Mr Paulley (represented by Cloisters’ barristers Robin Allen QC and Catherine Casserley) permission to appeal the Court of Appeal’s decision in a case considering what reasonable adjustments a bus company is required to make in order to accommodate disabled wheelchair users. The facts: Mr Paulley, a permanent wheelchair user, attempted to board a bus operated by the Respondent FirstGroup Plc. A sign on the bus asked passengers occupying the wheelchair space to "please give up this space if needed for a wheelchair user". However on the day in
This theme will be considered at Liverpool John Moores University's Equality, Diversity and Human Rights Conference on 4 November 2015 where Cloisters' Robin Allen QC will be keynote speaker. Equality, Diversity and Inclusion is a fast changing scene and this popular event will review the past five years since the Equality Act 2010 came into force and the impact it has had, both positive and negative, on diversity, equality, and community cohesion. It will consider what positive changes could be made for the future in the field of higher education. LJMU Vice Chancellor and Chief Executive will open the event which in the past
Dee Masters and Nathaniel Caiden, like many of our barristers, are frequently tasked with dealing with wide-ranging discrimination claims. They have recently written a practical article for the ELA Briefing, discussing a potential solution to taming such ‘sweeping discrimination claims’: using a staged approach. A staged approach involves the claims being divided into primary and secondary schedules. The tribunal would then adjudicate upon the primary claims. The strongest and most valuable claims would almost inevitably appear in this group. The secondary complaints would not have been withdrawn and so could be revived by the claimant, if appropriate, once judgment has been
Cloisters' Robin Allen QC is to speak at the Industrial Law Society’s Annual Oxford Conference being held at St Catherine’s College Oxford on 25-27 September 2015. This event will cover the following topics: -Conflict of rights in the discrimination field; -Restrictive covenants; -Individual v collective rights; -Settlement agreements; -Resolving workplace disputes; -TUPE; and -Industrial action and balloting reform This year’s after-dinner speaker is television presenter Miriam O’Reilly. For further details: http://www.industriallawsociety.org.uk/ils_events/68#sthash.CK7Ws3Kk.dpuf
Cloisters’ barristers Simon Dyer and Lisa Sullivan successfully represented a child with cerebral palsy in ABC v Kettering General Hospital NHS Trust. The boy, now 12, suffers from cerebral palsy as a result of delayed birth at the hospital. The case, heard at an approval hearing before Mrs Justice Nicola Davies, settled for a capitalised equivalent sum of £7.2 million. The compensation package will include funds for expert treatment, rehabilitation and care to allow the child to reach his maximum potential.
By Rajiv Bhatt Cloisters’ Chris Milsom is currently being led by Matrix Chambers’ David Wolfe QC in a judicial review of the army’s minimum service requirements for minors. The case has been brought by Child Soldiers International (CSI), an NGO concerned with the involvement of children in armed conflict. It has already generated considerable media coverage from the Independent, Channel 4 and the BBC. In the UK, potential recruits are permitted to join the army aged 16. Regulation 11 of the Army Terms of Service Regulations 2008 (SI/2007/3382) (“Army Service Regulations”) deals with the right of solders to leave the regular
On Friday 26 June 2015 same-sex marriage was recognised as a constitutional right in the USA. Siân McKinley looks at the judgment in Obergefell v Hodges, and future areas of development for the UK. Obergefell v Hodges The Fourteenth Amendment to the US Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law” (the Due Process Clause). Furthermore, no state shall “deny to any person within its jurisdiction the equal protection of the laws” (the Equal Protection Clause). The U.S. Supreme Court ruled 5–4 that the right to marry is a fundamental
By Jacques Algazy QC The judgement of the Northern Ireland Court of Appeal (“NICA”) in Patterson v Castlereagh Borough Council marks the latest stage in the evolution of the case law on the calculation of holiday pay and the concept of “normal remuneration” for the purpose of reckoning the appropriate entitlement. The Northern Ireland Industrial Tribunal had determined that voluntary overtime was not to be included as part of the determination of Mr Patterson’s correct entitlement under the Working Time Regulations (Northern Ireland) 1998. This conclusion was reached on the Tribunal’s analysis of the English EAT decision in Bear Scotland and
By Sally Cowen The Advocate General gave an opinion last week, stating that the time taken by peripatetic employees travelling to and from their first/last appointments to home should have that time considered as ‘working time’ under Article 2 of 2003/88/EC Directive (Federación de Servicios Privados del sindicato Comisiones Obreras Case C-266/14). The facts arose from security system engineers in Spain. The company closed their regional offices, in favour of one central office in Madrid. This meant that employees used company vehicles to travel to jobs at appointed locations within their geographic area of cover, from their homes. The company did
Akua Reindorf and David Massarella discuss how the Protection from Harassment Act 1997 is a flexible tool which can be used by employment practitioners in situations that the more familiar harassment provisions in the Equality Act 2010 cannot cover. It was originally created to target stalkers, but the definition of 'harassment' within the PHA is broad enough to encompass other forms of oppressive behaviour in many different contexts, including employment. To read the full article first published in ELA Briefing please click Part 1, Part 2, Part 3
Jason Galbraith-Marten QC will be a key note speaker at Cloisters' sponsored Association of University Legal Practitioners (AULP) Conference 2015. This two day annual event for AULP members will include workshops and presentations on current issues faced by legal services in higher education. The conference is being held at University of Nottingham on Wednesday 17 June - Thursday 18 June. Jason’s topic will cover performance management of academics. For details on how to book click here
Cloisters' barrister Schona Jolly will join a panel of eminent speakers at the seminar After the Arab Spring: Human Rights and the Rule of Law in the Middle East which will explore existing and emerging forces across the Middle East four years after the start of the 'Arab Spring'. The panellists will examine the current human rights situation across the Arab world. In particular, new trends in women’s activism and political participation in post-uprising Arab countries and the challenges being faced by human rights defenders, lawyers and journalists as an essential aspect of the rule of law. Panellists will also shed a
By Catriona Stirling Once upon a time, the British Medical Journal satirically asked what doctors could do if faced with a clinical problem for which there were no randomised controlled trials and no good evidence (Isaacs, D., Fitzgerald, D. Seven Alternatives to Evidence Based Medicine. BMJ. 1999 Dec 18; 319(7225): 1618). The suggested alternatives to evidence based medicine included eminence based medicine, in the practice of which, the more senior the colleague, ‘the less importance he or she place[s] on the need for anything as mundane as evidence’; eloquence based medicine, where ‘[t]he year round sun tan, carnation in the button
Sally Robertson considers the ruling in R (Ms C & Mr W) v Secretary of State for Work and Pensions  EWHC 1607 (Admin). On 5 June, Mrs Justice Patterson in the Administrative Court ruled that the Department for Work and Pensions’ delay in delivering Personal Independence Payments (PIP) to two claimants was unlawful. PIP was introduced from April 2013 in a rolling programme to replace Disability Living Allowance (DLA) for adults of working age. Between October 2015 and late 2017, any adults remaining in receipt of DLA will be reassessed for PIP. Originally it was anticipated that some 600,000 DLA
By Claire McCann An alliance of organisations with expertise in employment law and issues affecting parents at work have created SPLash, a website dedicated to providing advice on the new rights relating to shared parental leave. The legislation governing these rights can be complex to navigate and SPLash hopes to provide much needed clarification on the exercise of rights to shared parental leave and pay. The alliance is made up of Cloisters, YESS, Maternity Action, Working Families, Practical Law and Old Square Chambers. The purpose of SPLash is to share knowledge and best practice on shared parental leave and the website
By Olivia Dobbie Northern Ireland delivers a small slice of sweet justice to the gay rights movement, but for some, it leaves a bitter aftertaste. Is the law moving too fast? Just days before the Republic of Ireland voted in favour of same-sex marriage, its neighbour, Northern Ireland, demonstrated a similarly positive stance to gay rights in the judgment of Lee v Ashers Bakery (in which Cloisters’ Robin Allen QC acted for the plaintiff in this significant ruling). Is this an indication that Northern Ireland might ultimately arrive at the same destination on the issue of gay marriage? Or merely the imposition of legal principles in
By Adam Ohringer Appeals against many professional disciplinary tribunals lie to the High Court. CPR PD 52D lists the bodies over which the court exercises a supervisory role. Through what could only have been an oversight, the list omits appeals against decisions taken by the Secretary of State for Education in respect of teachers under s.141B of the Education Act 2002. In cases such as Brown v Secretary of State for Education  EWHC 643 (Admin), however, the court has readily filled the legislative gap. Unless otherwise specified there is no need for permission to appeal, although under CPR PD 52D a 28day
By Jacques Algazy QC & Claire McCann In the Woolworths case, the CJEU has confirmed that under the EU Directive on Collective Redundancies an employer’s obligations are triggered in respect of the single employing unit to which the affected employees are assigned and has declined to deal with the question of vertical direct effect. Background In USDAW and Anor v WW Realisation 1 Ltd and Ors (the Woolworths case), the Respondent employers – a chain of retail stores with branches at a number of locations across the UK – went into liquidation and a large number of employees were made redundant. The redundant
Cloisters' Head of Chambers, Robin Allen QC, is invited to chair a session at the Joint Council of Europe- European Commission - Age Platform Europe - ENNHRI's high level conference to mark the 10th World Elder Abuse Awareness Day. The conference titled 'Tackling elder abuse in Europe: a renewed commitment or a missed opportunity?' will take place at the Council of Europe office in Brussels on 15-16 June 2015. It will cover policies and practices in implementing international and EU human rights instruments. The event will focus on several aspects of abuse that are particularlychallenging,including adequate support to older victims and financial abuse. It will showcase
By Sheryn Omeri On 24 May 2008, Jean-Pierre Bemba Gombo was arrested for having allegedly committed, jointly with and/or through other persons, the crimes of rape as a crime against humanity and as a war crime, torture as both a crime against humanity and as a war crime, murder as both a crime against humanity and a war crime and pillaging as a war crime in the Central African Republic in the context of an armed conflict that took place from October 2002 to March 2003. It was alleged that Mr. Bemba had been President and Commander in Chief of the
The President of the Employment Tribunals, Judge Brian Doyle, has announced that the Compensation for Loss of Pension Rights Booklet (“the Guidance”) has been withdrawn from the Ministry of Justice website, however the underlying approaches in the Guidance remain valid. The decision follows Underhill LJ’s comments in Griffin v Plymouth Hospitals NHS Trust  EWCA Civ 1240 (where the Claimant was represented by Cloisters’ Joel Donovan QC and Chris Milsom). Underhill LJ urged an urgent review of the Guidance in order to ensure that claimants were adequately compensated in light of changes in pension law and practice. The Guidance is due
By Rajiv Bhatt In the recent case of Barton v Royal Borough of Greenwich UKEAT/0041/14/DXA (in which the respondent was represented by Cloisters’ barrister Sheryn Omeri) the claimant came to find out that his line manager had emailed documents which contained personal data to what he thought was her unsecured home email address. He considered this to be a significant breach of the Data Protection Act 1998 (“DPA 1998”), and so contacted the Information Commissioner’s Office (“ICO”) and thereafter his line managers. The respondent instructed him not to contact the ICO again without the prior authorisation of his line manager,
We are delighted to announce that Jonathan Mitchell QC has joined Cloisters as an associate tenant. Jonathan, a member of the Scottish Bar, brings with him his great skill and experience in commercial law, discrimination and equality, employment, sports and entertainment, human rights, regulatory and public law. He is renowned for his strength in appellate matters and high-profile cases. "He is a class act, with a very wide range... an elegant, concise and forceful advocate...” with a “fierce intellect" Chambers and Partners 2015. Jonathan, whose wide civil practice is based in Scotland, has appeared 14 times in the House of Lords/UK
By Catriona Stirling Background The Supreme Court has handed down its judgment in the case of James Rhodes v OPO and another. The decision has, rightly, been presented as a victory for free speech, but it is also an important and interesting case from a tort law perspective. Mr Rhodes, a well-known concert pianist and author, wishes to publish his memoirs. Certain passages in those memoirs give a graphic account of horrific sexual abuse that he suffered at school and its effect on him. Mr Rhodes’ former wife wished to stop the publication of those passages on the ground that publication
The Metropolitan Police has again lost a major discrimination claim brought against it by a serving officer. Akua Reindorf represented PC Lichters in his claim for direct sexual orientation discrimination, harassment and victimisation. The Met's beleaguered Fairness at Work (FAW) grievance procedure was also criticised for failing to provide any mechanism by which a discrimination complaint can be upheld. The Employment Tribunal found that PC Lichters was discriminated against over a period of six years, from the beginning of his appointment to the elite Dog Support Unit. He was subjected to disparaging and discriminatory comments directly connected to his sexual orientation
By Olivia Dobbie In a judgment handed down today by a County Court sitting in Belfast, Ashers bakery was found liable for discriminating against a customer when it refused to fulfil his order of making a cake which was iced with the slogan “Support Gay Marriage”. Cloisters’ Robin Allen QC acted for the customer (the plaintiff) in this significant ruling which will have wide-reaching implications. The facts The customer, Mr Lee, is a gay man and is involved with a volunteer organisation called QueerSpace, supporting LGBT rights in Northern Ireland. He has a genuine and deeply-held belief that gay people should
In “Unreliable Evidence”, broadcasted on BBC Radio 4 on 13 May 2015, Clive Anderson and a panel of senior legal experts discussed the apparent failure of the Equal Pay Act 1970 to bridge the gender pay gap. Amongst those taking part was Cloisters barrister,Vice Chair of the Industrial Law Society and Cambridge academic Sarah Fraser Butlin who told the programme that court actions have replaced trade union collective bargaining as a force for social change in this area, but believes that this is an extremely inefficient way to correct pay inequality. For a link to the programme via the BBC website,
By Chesca Lord Last week, Eversheds announced that their client British Gas had lodged an appeal against the recent Employment Tribunal Judgment in Lock v British Gas. Eversheds stated that the appeal is on the following two grounds: “1. Commission and non-guaranteed overtime are dealt with under different provisions, which use different language, and the Tribunal incorrectly concluded that Bear Scotland, a case about overtime, had any bearing on the outcome of Lock. 2. In any event, the EAT in Bear Scotland incorrectly concluded that our domestic legislation could be interpreted purposively to give effect to EU law.” In light
In an interview with The Times today, barrister and Head of Cloisters' Civil Liberties and Human Rights Group, Schona Jolly joined other leading legal figures to call upon David Cameron for clarity on plans to scrap the Human Rights Act and replace it with a new bill of rights. The prime minister has so far given little indication as to what the new bill will contain. “Pressure should be put on the government now to publish the draft so that a well-informed factual debate can begin in earnest. The guessing game needs to be ended immediately” urged Schona. To read the full
By Sally Robertson Is it OK at a job interview to ask a woman about her childcare plans? The Guardian published the wrong answer from its workplace agony uncle, Jeremy Bullmore, last Saturday in http://bit.ly/1EZICkd. From her perspective as a working mother and former ‘Dear Jeremy’ columnist, Ruth Cornish gave a much better answer in her blogpost at http://bit.ly/1KJF9ac , while Darren Newman spelled out the law on less favourable treatment in his blog at http://bit.ly/1bA8uY1 What, though, if the woman is already pregnant and visibly so? If the bump prompted the question, is that enough to show unfavourable treatment? Yes.
Chambers is delighted to congratulate Schona Jolly on being shortlisted for 'Barrister of the Year' at The Lawyers Award 2015. Schona is head of Cloisters' Civil Liberties and Human Rights Group and on the Bar's Human Rights Committee. The shortlist for The Lawyer Awards 2015 was announced today. The winner will be announced at an awards ceremony on Tuesday 23 June at the Grosvenor House Hotel in London. For further information about the awards and the full list of those shortlisted please click here.
Five Cloisters' Silks will be on the panel of 22 leading Queen’s Counsel at the 22 Silk - Hot issues in Employment Law 2015-2016 conference devised and chaired by Michael Rubenstein. Robin Allen QC, Daphne Romney QC, Jason Galbraith-Marten QC, Caspar Glyn QC and Rachel Crasnow QC will be part of the expert panel who will update delegates on the latest key issues in employment law that are likely to be of concern in 2015-16. Date: Thursday 1 and Friday 2 October 2015 Venue: Strand Palace Hotel, London, WC2R 0JJ This two day conference will be of interest to all those advising on employment law
The Modern Slavery Act 2015 (MSA 2015) was one of the last bills to receive Royal Assent before Parliament was dissolved for the election. Schona Jolly, head of Cloisters' Human Rights Group, considers the new law and its shortfalls in this article published in Halsbury Law Exchange.
An update on the conjoined trials of Laurent Gbagbo and Charles Blé Goudé By Sheryn Omeri The prosecutions of former President of the Ivory Coast, Laurent Gbagbo, and his Sports Minister, Charles Blé Goudé, came before the Trial Chamber of the International Criminal Court (‘ICC’) on 21 April 2015 for the first time since June and October 2014 respectively. Both Messieurs Gbagbo and Blé Goudé were the subjects of arrest warrants issued by Pre-Trial Chamber III of the ICC on 23 November 2011 (Gbagbo) and 21 December 2011(Blé Goudé). The warrant issued in relation to Laurent Gbagbo made reference to four
USDAW v Woolworths C-80/14 By Declan O'Dempsey Today the CEJU handed down its judgment on C‑80/14 Union of Shop, Distributive and Allied Workers (USDAW), B. Wilson v WW Realisation 1 Ltd, in liquidation, Ethel Austin Ltd, Secretary of State for Business, Innovation and Skills. Since the Advocate General’s Opinion in [5/2/15] the expectation has been that the CJEU would rule against the union’s interpretation of when the rules for collective redundancy apply, and this has now happened. However the reasons are interesting as they represent a balance being struck the CJEU. The case is a reply to a request by the
Daphne Romney QC talked to Jenni Murray on Radio 4 Woman’s Hour on 30 April 2015 about why sexual discrimination and harassment are still so rife in the City and how women who object to the aggressive and often crude male sexual messages are often described as ‘cry-babies’. "What men see as ‘banter’ other people see as abuse “, she says. She also described the mental and physical toll and career consequences of bringing proceedings in a tribunal. Svetlana Lokhova, the City Banker who was awarded £3 million pay-out for sex discrimination and harassment at work described how she was subjected
University and College Union v University of Stirling When are proposed dismissals for reasons not related to the individuals concerned? This is the question that employers, trade unions and Employment Tribunals must address when considering whether an employer is obliged to consult about collective redundancies, because it is only when a dismissal is for reasons unrelated to the individual concerned that the duty to consult arises. The Supreme Court endorsed the ‘admirable test’ stated by the Employment Appeal Tribunal in University and College Union v University of Stirling: ‘A reason relates to the individual if it is something to do with
Declan O’Dempsey reports back from the ERA Seminar for the judiciary held in Prague on 22-24 April, on the Court of Justice of the EU’s current views on how to draft a good request for a reference for a preliminary ruling. There are many lessons practitioners can draw on how to ask for a request to be made by the Court or Tribunal. See here for the full article
Chestertons v Nurmohammed By Daphne Romney QC In order to qualify as a protected disclosure, a disclosure must be a qualifying disclosure, namely that it must fall within the categories listed in section ERA 1996 43B(1) as inserted by the Public Interest Disclosure Act 1998, and now re-amended by the Enterprise and regulatory reform Act 2013. Various Parliamentarians have had a go at defining this clearly and have failed. Before 1998, there had been two attempts to introduce a measure to afford protection and encouragement to whistleblowers. The first Bill in 1995 was inspired by a number of preventable scandals
Cloisters' barrister Sheryn Omeri discusses the most recent decision in Hounga v Allen, a case where the claimant, Miss Hounga, had arrived in the UK on a fraudulent passport which she had used to secure a 6-month visitor’s visa and worked illegallyas a home help for the first Respondent (Mrs Allen) in London for a period of 18 months. Read Sheryn's full article in Counsel Magazine. April 2015 issue
Cloisters barristers, Rachel Crasnow QC, David Massarella and Jennifer Danvers are giving a talk to the Royal College of Nursing on the dishonesty test within regulatory proceedings and how this has developed over time. The lecture on Monday 20 April is in London.
By Patricia Hitchcock QC Shortly before Parliament rose for the election, the Public Administration Select Committee (PASC) published a report calling on the next Secretary of State for Health to set up a new, independent patient safety investigation body as a matter of priority. Lawyers specialising in medical cases, and patient advocate organisations, have for some time protested the lamentable inefficacy of the NHS complaints procedure and the highly regional approach of NHS Trusts to self-scrutiny and Serious Untoward Incident reporting. Despite long-standing official policies of honesty in the main medical defence organisations’ and Trusts’ policies, and recent drives towards a