The Latest from Cloisters

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Caroline Musgrave discusses the application of QOCS to Motor Insurance Bureau claims Caroline Musgrave recaps on Qualified One Way Cost Shifting (“QOCS”) before considering the recent High Court decision of Howe v Motor Insurance Bureau [2016] EWHC 884 (QB), considering the application of QOCS to Motor Insurance Bureau claims. Here we consider Motor Insurance Bureau (“MIB”) liability for accidents caused by uninsured and untraceable drivers in the UK and abroad and the need for After the Event (“ATE”) insurance. QOCS was introduced as part of the Jackson reforms. It is intended to protect those who have suffered personal injuries from the risk of facing adverse costs orders. The full QOCS rules, scope and

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EU anti-discrimination law: ten "easy" steps to disapplying inconsistent national provisions Anna Beale looks at recent guidance from the CJEU in the context of age discriminatory provisions of Danish domestic law in Rasmussen. A constant theme in EU law is the extent to which EU provisions can be relied upon by domestic courts to interpret or disapply domestic law.  The case of Dansk Industri v Estate of Karsten Eigil Rasmussen (C-441/14) is an important addition to this jurisprudence, fully explaining the effect of EU age discrimination law in cases where both parties are private individuals. Rasmussen concerned a provision of Danish law under which individuals continuously employed in the same undertaking for

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Six Cloisters' Silks join 22 QCs to update on hot Employment Law issues for 2016-2017 Six Cloisters' Silks are on the panel of 22 leading Queen’s Counsel at the 22 QCs - Hot employment law issues for 2016-2017 conference devised and chaired by Michael Rubenstein. Robin Allen QC, Daphne Romney QC, Paul Epstein QC, Jason Galbraith-Marten QC, Caspar Glyn QC and Rachel Crasnow QC will be part of the panel of experts who will update delegates on 22 key employment law topics that are likely to be of concern in 2016-17. Date: Thursday & Friday 29 -30 September 2016. Venue: The Strand Palace Hotel, London, WC2R 0JJ. Day 1: Thursday 29 September 2016 Paul’s morning session will cover ‘Data protection and employment law: recent developments’.

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Secondary victims revisited: Liverpool Women’s Hospital NHS Foundation Trust v Ronayne By Daniel Dyal Claims by secondary victims are subject to well-known control mechanisms. The classic statement of which came in Alcock v Chief Constable of the South Yorkshire Police[1]: there must be a close tie of love and affection with the person killed, injured or imperilled; there must be proximity in time and space to the incident or its immediate aftermath; the incident or its immediate aftermath must have been directly perceived; the psychiatric injury must be induced by a sudden shocking event. The control mechanisms are recognised to be arbitrary and lacking in principle. Indeed Professor Stapleton famously described them

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Cloisters sponsors conference to discuss the ‘Lords Report on Disability and the Equality Act: Turning Recommendations into Reality’ Cloisters is proud to co-sponsor the conference to discuss the ‘Lords Report on Disability and the Equality Act:Turning Recommendations into Reality’ on 27 April 2016 at the Max Nasatyr Room, Third Floor Suite, Coin Street Neighbourhood Centre, 108 Stamford Street, South Bank, London, SE1 9NH. This timely event, co-organised by Catherine Casserley, a barrister at Cloisters and a Special Adviser to the Lords Select Committee, will provide an opportunity to reflect on the key recommendations of the House of Lords Select Committee on the Equality Act 2010 and Disability issued on 24 March 2016 (and available here). The event will also create the

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William Latimer-Sayer QC speaks on life expectancy at the annual PIBA Conference 2016 William Latimer-Sayer QC spoke on the topic of ‘life expectancy’ at this year’s PIBA annual conference held at St Catherine’s College, Oxford, on 8-10 April 2016. William, a Catastrophic Personal Injury and Clinical Negligence specialist, is a highly ranked barrister with a special interest in quantum. To read William’s paper on Life Expectancy please click here 

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Cloisters sponsors the Association of University Legal Practitioners’ Conference 2016 on 11 -12 April 2016 Cloisters is proud to co-sponsor this year’s annual conference of the Association of University Legal Practitioners (AULP) held at  Cambridge University on 11-12 April 2016. This two-day event promises to be a controversial one. Declan O’Dempsey will speak on how the implications of Prevent Duty placed on higher education bodies under the Counter-Terrorism and Security Act 2015 will impact universities.  The duty requires universities to have due regard to the need to prevent people from being drawn into terrorism.  However universities are also bound to promote free speech.  Declan will consider the difficult administrative law challenges the universities face in trying

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The Bar and shared parental leave by Rachel Crasnow QC Since Shared Parental Leave (SPL) came into force a year ago on 5 April 2015, I have written, lectured and advised widely about this new legal entitlement. The people I have not engaged with much about SPL are barristers - for the key reason that as self-employed professionals rather than employees, they are excluded from this legal entitlement.  So why could SPL - this still new means of caring flexibly for a child in its first year of birth or adoption be relevant for barristers with babies? The answer is it would be a huge missed opportunity

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Brexit – what will happen to the UK’s environmental policy? By Andrew Buchan If the UK leaves the EU what will happen to the UK’s environmental policy? This is not, as outlined below, a purely academic question. It cropped up recently during an interview on the BBC’s Today Programme[1] between, Justin Webb (the interviewer) and Amber Rudd (the Secretary of State for the Environment). The discussion turned to whether, in the event of Brexit, the UK might or might not repeal the UK Climate Change Act, which is the Act that requires a reduction in emissions and other measures:    Rudd: “…when the leavers say our bills wouldn’t come down because

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Robin Allen QC and Prof. Muriel Robison to speak on key Discrimination Law updates at the Forum for Research into Equality and Diversity seminar Robin Allen QC and Professor Muriel Robison will provide key Discrimination Law updates for lawyers and HR practitioners at a seminar hosted by the Forum for Research into Equality and Diversity (FRED) in collaboration with the University of Northampton on April 11 2016 at Aston University, Birmingham from 6pm – 8pm. The two-hour course will cover key case law and legislative developments in the UK and the EU during 2015/2016. It will also look into what the future holds in relation to discrimination law and explore the implications for practice of recent developments.  This is an opportunity to gain 2 CPD points and

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Jason Galbraith-Marten QC and Sarah Fraser Butlin act for cycle couriers in fundamental challenge to courier industry’s employment practice Jason Galbraith-Marten QC and Sarah Fraser Butlin are instructed by the Independent Workers Union of Great Britain (IWGB) to act for a number of cycle couriers who are bringing claims against some of the major courier companies.   The cycle couriers are claiming holiday pay and seeking a written statement under s1 Employment Rights Act 1996 to establish that they are not self-employed contractors but are, at the very least, workers.   Once an individual is a worker, then they gain a number of rights including the right to holiday pay. The cases represent a fundamental challenge to how the entire

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Latest step on the road to Personal Health Records : from 31 March 2016 all GP practices should be offering online access to coded information in patient records By Hannah Godfrey According to the Department of Health, it is the ambition of the health and care system to become paper-free and provide citizens with their full health and care digital records by 2020. You can read more about this here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/384650/NIB_Report.pdf. The PHR (personal healthcare record) concept was rolled out in the Department of Health’s 2012 Information Strategy for England.  The rationale is that patients should be enabled to have greater involvement in managing and making decisions about their health. This is a laudable goal, aimed at making medical services more modern, convenient and responsive.  If done well, it

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House of Lords Select Committee condemns Equality Act’s failures to secure equality for disabled people On 24 March 2016, the House of Lords’ Select Committee published its report on the Equality Act 2010 and Disability entitled “The Equality Act 2010: the impact on disabled people”. Catherine Casserley acted as the Select Committee’s specialist adviser for the Report. She has appeared in a number of the cases referred to in the Report and obtained the injunctive relief the Report referred to. The House of Lords Select Committee (“the Committee”) was established in 2015 to carry out post-legislative scrutiny on the disability provisions of the Equality Act 2010 (“the Act”) – in particular to consider: – The adequacy

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Cloisters Employment is ranked in Who’s Who Legal: UK Bar We are pleased to announce that barristers at Cloisters have been ranked in this year’s Who’s Who Legal UK Bar 2016 directory in Labour & Employment. Silks “Cloisters Chambers receives four nominations in this practice area.  The “innovative” Robin Allen QC is a “leading figure” at the employment bar and is regularly involved in cross-border employment disputes.  Jason Galbraith-Marten QC has over 20 years of experience at the bar, and continues to provide “straightforward and clear advice” to clients.  Paul Epstein QC is admired by peers for his “impressive roster of clients” which include top UK law firms, trade unions, public

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Robin Allen QC and Jonathan Mitchell QC secure major victory for 6,500 women in equal pay dispute worth £100m Robin Allen QC and Jonathan Mitchell QC successfully acted for thousands of women workers in a long-standing equal pay dispute against Glasgow City Council. Around 6,500 women are now expected to share a substantial pay deal worth up to £100 million. The decision by the Employment Appeal Tribunal in J MacDonald & Others v Glasgow City Council  will have far reaching impact on other local authorities that fall foul of the equal pay laws. The EAT in Edinburgh heard how 6,500 female staff at the Council were paid less than their male colleagues despite the Council’s introduction of a new wage

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Interim payments in the clinical negligence context By Jennifer Danvers In Sellar-Elliott v Howling [2016] EWHC 443 (QB) permission to appeal against an interim payment order of £100,000 was refused in a clinical negligence case where causation was in dispute.  This is an important case for clinical negligence practitioners dealing with such applications prior to exchange of medical evidence. Background The Claimant, represented by Penningtons Manches LLP and Simon Dyer of Cloisters, alleged that the Defendant, a consultant radiologist who carried out a CT scan on the Claimant in 2008, had failed to report on a mass on the Claimant’s liver.  In early 2012 the mass was identified as

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Extension of Right to Shared Parental Leave…. Claire McCann considers this week’s announcement by George Osborne in the March 2016 budget to extend the right to shared parental leave Shared parental leave was introduced for parents of babies due on or after 5 April 2015, allowing mothers to share their leave with their “partner” which is defined in the legislation as “someone, of either sex, who lives with the mother and the child in an enduring family relationship but who is not the mother’s child, parent, grandchild, grandparent, sibling, aunt, uncle, niece or nephew”. Most often, this will be the child’s father or the mother’s partner if there

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Tagged in: Claire McCann Equality
School attendance awards: a poor lesson in tolerance to disabilities Declan O’Dempsey and Siân McKinley consider the problems caused by school attendance award schemes. Some schools have started trying to encourage 100% attendance by pupils by having attendance awards schemes.  There are various ways in which a school can do this, and the precise way will be a matter for the school.  However, certain methods of encouraging full attendance are based on a theory of group awards.  So if a class has a 100% attendance this gets them all a reward, in the form of a treat.  The idea is that there is peer group pressure on those who might otherwise

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Declan O’Dempsey successfully argues that Prison Service sessional teachers are entitled to employment rights A Cardiff Employment Tribunal has found that sessional teachers in the Prison Service were employees and therefore entitled to employment rights.  Declan O’Dempsey, acting for Prospect union members, successfully argued (in the case of Betts and Others v Secretary of State for Justice) that their employment was lawful.  Surprisingly the Prison Service sought to argue that the contracts were illegal because the Prison Service has exceeded its powers (acted ultra vires) in entering into them.  It argued that because the employment was not the result of fair and open competition, the Prison Service had no power to employ the Claimants, and

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No childcare vouchers during maternity leave: upping the pressure during early months Rachel Crasnow QC considers the recent judgment of the EAT in Peninsula Business Services v Donaldson (handed down on 9 March 2016) Is it discriminatory to discontinue childcare vouchers during maternity leave? No, held the EAT in Peninsula Business Services v Donaldson, deciding that childcare vouchers amounted to “remuneration” and that it was not unlawful to require the Claimant to enter the voucher scheme only on her agreement that the provision of childcare vouchers would be suspended during any period of maternity leave. Background Women employees on maternity leave are entitled to non-pay benefits pursuant to the Maternity and Parental Leave

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Limits to the concept of ‘Associative Discrimination’ The Supreme Court has refused permission to appeal or to make a referral to the CJEU in Hainsworth v Ministry of Defence. Daphne Romney QC considers this brake on the concept of associative discrimination and the law of disability. In Coleman v Attridge [2008] IRLR 722 the ECJ held that Art. 2 of the Framework Employment Equality Directive applied not just to employees with disabilities but also to those associated with people with disabilities. Art. 2 provides: For the purposes of this Directive, the "principle of equal treatment" shall mean that there shall be no direct or indirect discrimination whatsoever on

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Investor-State Arbitrations Cloisters’ Sheryn Omeri will introduce the guest chair and guest speaker, O. Thomas Johnson, Judge of the Iran-United States Claims Tribunal, at a lecture to be given to members of the Commercial Bar Association on Thursday, 9 June 2016. The guest chair will be Lord Walker of Gestingthorpe, former Justice of the Supreme Court, non-permanent Judge of the Hong Kong Court of Final Appeal and Member of the House of Lords. Mr Johnson will speak on the subject of investor-State arbitrations and the role and future of the Claims Tribunal in view of the recent nuclear deal.

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Being deterred from membership of an independent trade union:  Court of Appeal, again, considers the case of Mr Bone Sarah Fraser Butlin reviews the recent judgment of the Court of Appeal in the long-running litigation in Bone v North Essex Partnership NHS Foundation Trust.  Mr Bone was the leading light of the Workers of England Union (WEU) and brought claims of race discrimination, which were all dismissed, and of detriment under s146 TULRCA 1992.  The claims that were upheld by the Tribunal concerned a failure by the NHS Trust to deal properly with bullying and harassment by other employees.  The acts included emails suggesting that the WEU was linked with fascism, describing Mr Bone as a bigot and greeting him

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Equality, discrimination and the marginalised: The Immigration Bill 2015-16 and employment rights for migrants By Akua Reindorf Introduction The Immigration Bill 2015-16 was introduced on 17 September 2015 by a press release declaring that the Government’s intention is to make it “tougher than ever before” for illegal migrants to live in the UK. The press release is unambiguous in its message that tough action will be taken to crack down on those they deem to threaten the security of our “hard working families”. This invidious piece of proposed legislation will inevitably have effects beyond its intended targets. Its provisions on employment, housing, health, benefits, access to justice and even the right to drive appear destined

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Cox v MoJ: Vicarious Liability Extension in Christian Brothers Case Approved by Supreme Court By Catriona Stirling Vicarious liability has been considered by our highest courts in a flood of cases in recent years and the law has taken another step forward with today’s judgments from the Supreme Court in the conjoined appeals of Mohamud v WM Morrison Supermarkets plc [2016] UKSC 11 (in which the appeal was successful) and Cox v Ministry of Justice [2016] UKSC 10 (in which it was not).   In its separate, but complementary, judgments, the Court has given the latest word on: what relationship between the defendant and the wrongdoer (Cox); and what connection between that relationship and the

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The Court of Appeal in Griffiths: Malcolm comparison 'inapt' for reasonable adjustment cases In the disability discrimination decision of Griffiths v Secretary of State for Work and Pensions, the Court of Appeal provides helpful guidance on the proper comparator in reasonable adjustments cases. Rachel Crasnow QC and Sarah Fraser Butlin suggest that the Court’s conclusion – that the comparator is not akin to that in Malcolm – must be correct. They also address two subsidiary matters raised by the Court of Appeal that provide helpful guidance to practitioners – the interplay of s.20 Equality Act 2010 (reasonable adjustments) with s.15 Equality Act 2010 (a disability related claim), and the breadth of what is a reasonable step. Ms

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Mohamud: The Plates of Vicarious Liability Shift Again By Catriona Stirling Vicarious liability has been considered by our highest courts in a flood of cases in recent years and the law has taken another step forward with today’s judgments from the Supreme Court in the conjoined appeals of Mohamud v WM Morrison Supermarkets plc[2016] UKSC 11 (in which the appeal was successful) and Cox v Ministry of Justice [2016] UKSC 10 (in which it was not).   In its separate, but complementary, judgments, the Court has given the latest word on: what relationship between the defendant and the wrongdoer (Cox); and what connection between that relationship and the tortious

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Cloisters’ Joel Donovan QC and Adam Ohringer win definitive guidance on vicarious liability in Mohamud v Morrison Supermarkets The Supreme Court’s judgment in the case of Mr A M Mohamud (in substitution for Mr A Mohamud (deceased)) (Appellant) v WM Morrison Supermarkets plc (Respondent) – UKSC 2014/0087 on appeal from the Court of Appeal  was handed down this morning. The Court unanimously allows the Claimant’s appeal and holds the Respondent vicariously liable for the actions of its employee, in attacking the Claimant. See judgment here On 15 March 2008 Mr Ahmed Mohamud entered a petrol station adjacent to a Morrisons’ supermarket only to be viciously attacked by a sales assistant. The Morrisons’ employee Mr Khan, without any provocation, beat

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Sheryn Omeri on the destruction of cultural property and the first International Criminal Court prosecution After spending three months at the International Criminal Court in The Hague in 2015, Sheryn Omeri has written of the progress of one of the cases on which she worked in an article published in the January 2016 issue of Counsel. The case of Prosecutor v Al Faqi will be the ICC’s first prosecution for destruction of cultural property, defined as a war crime in the Rome Statute of the ICC. The confirmation of charges hearing, the first stage in the trial proceedings in the case was postponed from 18 January to 1 March 2016. It will be live-streamed from Courtroom

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Future Loss in Fatal Claims: Logic Restored Tamar Burton considers the Supreme Court judgment handed down this morning in Knauer v Ministry of Justice. The Appellant’s appeal was unanimously allowed. The Court has overruled the principle established by the case of Cookson v Knowles [1979] AC 556 and held that the multiplier for future loss in a claim under the Fatal Accidents Act 1976 should be calculated at the date of trial rather than the date of death. The Judgment In a single judgment written by Lord Neuberger and Lady Hale (with whom Lord Mance, Lord Clarke, Lord Reed, Lord Toulson and Lord Hodge agree) the Court fully endorsed the conclusions

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Caspar Glyn QC considers the hotly anticipated EAT holiday pay judgment of Lock v British Gas Caspar Glyn QC considers the hotly anticipated judgment in Lock-v-British-Gas handed down by the Employment Appeal Tribunal today. In the long running appeal of Lock v British Gas the EAT considered whether UK Holiday Pay could include pay to make up for commission which a salesman did not earn because he was on holiday. The decision invites an appeal to the Court of Appeal by the employers. Let us remind ourselves what happened to Lock before it was appealed to the EAT. The European Court recited the basic principles from previous cases such as the fact that holiday pay should reflect normal

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Closing the Gap:  Will the gender pay gap information Regulations bring about equality? Daphne Romney QC  considers how the draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016, published last week by the Government, will affect businesses. On 12 February 2016, the Government published the draft Equality Act 2010 (Gender Pay Gap Information) Regulations 2016, which will affect some 8,000 businesses. This means that it finally implemented s.78 of the Equality Act 2010 (“EqA”), the section enabling the Secretary of State to make Regulations concerning equal pay audits. (The gender reporting implemented by these Regulations is not be confused with the compulsory audits ordered by ETs under s. 139A of the EqA). Section 78

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Employment Tribunal awards over £832,000 for sexual harassment to former NHS Director represented by Akua Reindorf Akua Reindorf represented the successful Claimant, Helen Marks,  in a sexual harassment and sex discrimination case against Derbyshire Healthcare NHS Trust. The Employment Tribunal this week awarded Ms Marks £832,711 for injury to feelings, aggravated damages, personal injury and loss of earnings. See Marks v Derbyshire Healthcare NHS Foundation Trust. Ms Marks is the former Director of Workforce and Organisational Development of the Trust. In May 2015 the Tribunal found that she had proved “beyond reasonable doubt” that during her employment she had been pressurised by the Chair of the Trust, Mr Alan Baines, to have a sexual relationship with him. It

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Supreme Court gives guidance on the admissibility and use of expert evidence Rachel Barrett discusses Kennedy v Cordia (Services) LLP, in which the Supreme Court has given detailed and practical guidance on the admissibility and use of expert evidence in the course of a judgment concerning the remit of employers’ duties to take care for their employees’ safety at work. Background to the appeal Miss Kennedy worked for Cordia as a home carer. On the evening of 18 December 2010 she slipped and fell on an icy footpath leading to the home of one of her clients, injuring her wrist. Cordia had carried out risk assessments which identified the danger of falls when

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Starbucks held to account by Tribunal for its discrimination and victimisation of a dyslexic employee represented by Rajiv Bhatt Rajiv Bhatt successfully represented the Claimant, Ms Meseret Kumulchew, in her sex and disability discrimination, victimisation and whistleblowing case against Starbucks, Vishal Ballee (the store manager at the time) and Sharon Sherrett (the area manager).  The case, Kumulchew v Starbucks. has been widely reported by the BBC. Ms Kumulchew is employed as a Qualified Shift Supervisor at a Starbucks store.  She is dyslexic and struggles with reading, spelling and comprehension with information - she requires things to be broken down step by step.  Starbucks was aware of her dyslexia from an early stage in her employment. As part of her duties, Ms Kumulchew

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Access to Justice: the EAT considers how courts can provide reasonable adjustments for disabled people In Rackham v NHS Professionals Ltd Langstaff P (as he then was), in the EAT, has given judgment on the existence and nature of the duty on tribunals and courts to make reasonable adjustments for disabled litigants. Rackham v NHS Professionals Ltd [2015] UKEAT/0110/15: the issues The Claimant brought a case of disability discrimination and unfair dismissal against the Respondent. The Claimant was autistic at the high end (diagnosed as Asperger’s) and suffered from anxiety. That he was disabled was not disputed by the time of the appeal. At first instance he acted as a litigant in person with some assistance

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How disabled people can get a fair hearing from the law courts John Horan and Nathan Roberts persuaded the President of the EAT, Langstaff P (as he then was), in the case of JW Rackham v NHS Professionals Ltd [2015] UKEAT to issue guidance for disabled people including a recommendation as to the Equal Treatment Bench Book’s ground rules hearing. The ground rules hearing has never been judiciously considered before and this new development has many implications for civil, criminal and family trials as well. John and Nathan acted for the Appellant and were instructed by RadcliffesLeBrasseur For the full judgment click here  

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Age discrimination and the taxation of pension income By Robin Allen QC and Dee Masters In Finland there is a supplementary tax on income from a retirement pension (“the Supplementary Tax”).  It is charged at a rate of 6% provided that the pension income is greater than €45,000.  Crucially, it is paid in addition to the income tax which would ordinarily be levied. A Finnish national challenged the Supplementary Tax when the Government sought to tax his €460,000 retirement income which was partly derived from a workplace pension fund.  He argued that it amounted to age discrimination contrary to the Charter of Fundamental Rights of the European Union (“the

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Settling Injury to Feelings: A Taxing Time Tom Gillie, a pupil at Cloisters, considers the recent Upper Tribunal (Tax and Chancery Chamber) judgment in Moorthy v HMRC [2016] UKUT 13 TCC in respect of taxation on injury to feelings payments. Introduction Until recently, you could be forgiven for thinking that sums paid as settlement for injury to feelings were tax exempt. That forgiveness stops here: the Upper Tribunal (“UKUT”) has confirmed that payments for injury to feelings do not fall within the tax exemption which applies to payments for “injury” (under s.406 ITEPA). This means there are conflicting decisions in respect to this issue in two different forums:

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Material Contribution – the next chapter By Sally Cowen The Privy Council has (25/1/2016) given judgment in Williams v Bermuda Hospitals Board [2016] UKPC4, giving greater clarity on the issue of when a material contribution occurs. Previously Bailey v Ministry of Defence in the Court of Appeal had indicated that ‘material contribution’ occurred where there were multiple causes of injury which occurred simultaneously. From now on, we have the approval of the Privy Council to acknowledge material contribution, where the events are sequential. In the facts of Williams the Claimant went to hospital with abdominal pains. He was suffering from acute appendicitis. He underwent an appendectomy later

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Simon Dyer represents successful claimant in High Court clinical negligence trial In Hearne v Royal Marsden Hospital, the High Court had to balance the evidence of multiple experts to determine whether and when a patient should have been given blood-thinning treatment. Simon Dyer represented the Claimant, a cancer patient in 2010 who presented at hospital with stomach pains and a number of risk factors for venous thromboembolism (VTE). The risk of VTE was not identified and the Claimant suffered a pulmonary embolism four days later. The Court heard from six expert witnesses on the question of liability. It was admitted that a risk assessment for VTE should have been carried out. The dispute

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The European Accessibility Act 2015 The European Accessibility Act 2015 – Robin Allen QC and Dee Masters consider the new positive duty to make reasonable adjustments in relation to services and products for disabled people and certain age groups.  To view their paper please click on the following link European-Accessibility-Act-article.docx

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Bar on Straight Civil Partnerships is Lawful Bar on Straight Civil Partnerships is Lawful – Tom Gillie, a pupil at Cloisters, considers the Admin Court’s recent judgment in the judicial review claim brought by Ms Steinfeld and Mr Keidan. Many might think that the fact couples of the opposite sex cannot enter into civil partnerships, while their same sex counterparts can, is discriminatory. But the bar on civil partnerships for heterosexual couples has not become unlawful following the Marriage (same sex couples) Act 2013, according to the High Court in Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin). Ms Steinfeld and Mr Keidan

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Testing the limits of the Equality Act 2010 Adam Ohringer considers the recent EAT Judgment in  Butterworth v The Police & Crime Commissioner’s Office for Greater Manchester.   The Equality Act 2010 (EqA) prohibits many instances of discrimination against ex-employees.  Section 108 states: A person (A) must not discriminate against another (B) if...(a) the discrimination arises out of and is closely related to a relationship which used to exist between them, and (b) conduct of a description constituting the discrimination, would if it occurred during the relationship, contravene this Act. Despite an irregularity in the drafting of this provision, the Court of Appeal held in Rowstock Ltd v Jessemey

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CMOs Revisited: Case Management Orders in the Employment Tribunals Adam Ohringer considers the recent judgment of the EAT in Serco Ltd v Wells.   Employment Tribunals routinely make Case Management Orders (“CMOs”) for the fair and efficient determination of claims.  CMOs may be made on the papers or at a preliminary hearing.  In complex cases, there may be more than one preliminary hearing as the case progresses. In Serco Ltd v Wells (UKEAT/0330/15), the Employment Appeal Tribunal (HHJ Hand QC) considered the circumstances in which a CMO may be varied or set-aside.  What was it about? Put shortly, the Claimant’s case involved a large number of allegations contained in a Claim

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Schona Jolly appointed Joint Vice-Chair of the Bar Human Rights Committee Schona Jolly has been appointed joint Vice-Chair of the Bar Human Rights Committee, the international human rights arm of the Bar Council of England and Wales. Schona, head of Cloisters’ Human Rights and Civil Liberties Group and sitting as a Council member of Justice, specialises in discrimination and equality law, employment law as well as international human rights law.

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Early conciliation: the tide is turning towards a liberal interpretation In this blog, Nathaniel Caiden of Cloisters considers the latest EAT case on the Early Conciliation (“EC”) requirements - Mist v Derby Community Health Services NHS Trust UKEAT/0170/15 (“Mist”) (for judgment click Mist-Judgment.pdf ) which was handed down today. He also analyses the approach that ETs are likely to take going forward.   Overview of the EC requirements1. To understand the arguments that arose in Mist in relation to the EC requirements, advisors need to have a firm understanding of the EC procedure. 2. In nearly all cases, the employee will need to have gone ‘through’ EC before bringing their claim

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Claire McCann and Olivia-Faith Dobbie to speak at the ELA conference Discrimination: The Law and Strategy Claire McCann and Olivia-Faith Dobbie will be speaking on ‘Introduction to concepts of discrimination’ at the ELA  Discrimination: The Law and Strategy Conference on Tuesday 15 March 2016 at the Royal College of Obstetricians and Gynaecologists , 27 Sussex Place, Regent's Park London. Claire and Olivia’s plenary morning session will identify key discrimination concepts, including protected characteristics; direct discrimination; indirect discrimination and the justification defence (including justifying direct age discrimination); harassment and victimisation; an introduction to the additional/ different protections available in connection with disability discrimination and pregnancy and maternity discrimination; who can claim protection; when discrimination is unlawful; who can be liable for

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Ed Williams and Jennifer Danvers successfully defend School against allegations that Senior Leadership Team forged resignation letters of teaching assistants Ed Williams and Jennifer Danvers successfully defended a school in Birmingham against allegations that the senior leadership team had forged the resignation letters of teaching assistants. The facts of the case were described in the so called Trojan horse letter, which detailed a blueprint to introduce an Islamist ethos into schools in Birmingham and Bradford. Four members of staff at Adderley primary school alleged that the letters of resignation from them, which the school accepted, were forgeries. All four took the school to the Employment Tribunal. Three of the claimants alleged that the head teacher and senior leadership team were behind the forgeries. The

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Spying on Employees: Has the European Court of Human Rights really given carte blanche to employers? Schona Jolly looks at the recent judgment in Barbulescu v Romania. British newspapers have been swirling with scaremongering stories that suggest the right to privacy in the workplace is dead. This week, the European Court of Human Rights gave an interesting judgment in Barbulescu v Romania which has led to media speculation that ‘Europe’ now gives employers free rein to monitor private communications of employees. In fact, the European Court has said no such thing. The facts of the case included a policy in the workplace that specifically and expressly prevented employees from using computers for personal purposes. The employer asked

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