The Latest from Cloisters

News, Publications, Policies, Events and Blogs

2018: A year of international judicial progress in LBGT+ rights

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2018 has seen a flurry of activity in the advancement and development of LGBT+ rights in the international sphere. An exhaustive review of international LGBT+ rights would be beyond the scope of any single piece: the international landscape is far from homogenous; different countries and regions operate with different legal and social starting poin...
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Judgment handed down in the case of O’Brien v Ministry of Justice

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The CJEU has this morning handed down judgment in the case of O’Brien v Ministry of Justice (Case C-432/17). The judgment can be found here . In a 13 year fight for a pension, Dermod O’Brien has succeeded in his second visit to the CJEU. He was represented by his Cloisters’ team of Robin Allen QC , Rachel Crasnow QC and Tamar Burton . The case conc...
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Chris Milsom to appear in Court of Appeal in landmark case

Specialist employment and equality law barrister  Chris Milsom will appear in the court of appeal this week. He acts for a disabled student seeking a reappraisal of council tax Regulations which fail to recognise hours of study provided by way of reasonable adjustments. Students enrolled on courses which “normally require” at least 21 hours of...
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Bar Standards Board clarifies the responsibility of barristers to report harassment

Jennifer-Danvers
Jen Danvers considers the Bar Standard Board’s recent regulatory update to barristers concerning the reporting of harassment and the pilot harassment support scheme. In 2016 1,333 female barristers were surveyed, 40% of whom said that they had experienced harassment at the Bar. [1] The difficulties in tackling this issue, particularly in self-emplo...
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Whistle-blowers have a direct remedy for dismissal against individual co-workers

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Whistle-blowers have a direct remedy for dismissal against individual co-workers - Schona Jolly QC and Chris Milsom act for whistleblower charity Protect in Osipov v Timis & Sage Background to the appeal Alexander Osipov was CEO of International Petroleum Ltd (‘IPL’) until he was dismissed for blowing the whistle about wrongdoing in relation to...
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Darnley v Croydon Health Services NHS Trust: Supreme Court confirms duty of care exists on non-medical A&E staff

Patricia-Hitchcock
In a unanimous judgment delivered on 10 th October 2018, the Supreme Court reminded practitioners that there is no need to consider the Caparo v Dickman test in every case where the existence of a duty of care is in issue, and that judges must be careful not to conflate issues relevant to the existence of a duty with those relevant to whether or no...
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The Icing on the cake: Now the tit for tat starts

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In this blog Daphne Romney QC further considers the Supreme Court judgment in Lee v Ashers Baking Co. Ltd. Last week, the Supreme Court handed down judgment in Lee v Ashers Baking Co. Ltd. in which it held that the bakery had not discriminated against a customer on grounds of sexual orientation, or religion or belief, in refusing to bake him a cake...
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Daphne Romney QC considers the Supreme Court’s judgment in Lee v Ashers Baking Company Ltd and others

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The Supreme Court has upheld the appeal from Ashers a Northern Irish bakery and its owners, Mr and Mrs McArthur; they had refused to bake a cake with the message “Support Gay Marriage”. The Court held unanimously that the bakery had neither discriminated against Gareth Lee on the grounds of sexual orientation nor political belief; in any event, to ...
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Judgment Analysis: Jay v Secretary of State for Justice

Cloisters’ pupil, Catherine Meenan, examines the High Court’s decision to allow the appeal brought under the Gender Recognition Act 2004 in Jay v Secretary of State for Justice. Cloisters'  Claire McCann   acts for Ms M Jay, a trans woman who had her application for a Gender Recognition Certificate (GRC) denied by the Gender Recognition P...
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Excluding children with a tendency towards physical abuse and the EA 2010

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Catherine Casserley discusses C & C v the Governing Body of a School, The Secretary of State for Education (First Interested Part) and the National Autistic Society (Second Interested Party) (SEN) [2018] UKUT 269 , a judgment of the Upper Tribunal in which it was held that the exclusion of those with a tendency to physical abuse from the defini...
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Room for improvement: BEIS reviews Gender Pay Gap reporting

Daphne-Romney
The House of Commons’ Business, Energy and Industry Strategy Committee (BEIS) issued a report on 2 August 2018 making wide-ranging recommendations about gender pay gap reporting. Daphne Romney QC , an expert on equal pay matters, considers their conclusions in this blog. Introduction The Equality Act 2010 (Gender Pay Gap Information) Regulations 20...
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R (Jollah) v Secretary of State for the Home Department: The Parameters of False Imprisonment

Ruaridh-Fitzpatrick
Ruaraidh Fitzpatrick considers the judgments upholding the decision that a person who was unlawfully subject to curfew conditions requiring him, on threat of criminal sanction, to be at his home address between the hours of 23:00 and 07:00 every day had been entitled to damages for false imprisonment. Cloisters barristers Declan O’Dempsey , Sheryn ...
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Gender Recognition and Trans Equality

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With trans headlines constantly in the news,  Claire McCann  examines the law on trans rights and the dangers of misinformed debate in this month's edition of Counsel Magazine. Read full article here.

“No DSS”: Can landlords and letting agents lawfully bar benefits tenants?

Rachel-Crasnow
Private landlords and letting agents frequently advertise their properties stating that they will not rent to housing benefit tenants (for some outdated reason, still often referred to as “DSS” tenants). This causes real difficulties to such tenants whose housing choices are restricted. In this blog, Rachel Crasnow QC considers the legality of such...
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Are new initiatives to tackle age discrimination on their way?

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In this blog, Rachel Crasnow QC considers the recent proposals to reform the Equality Act 2010 outlined by the Women and Equalities Committee in its report concerning Older People and Employment which was published on 17 July 2018. Their proposals were formulated after hearing expert evidence from a range of people including Cloisters’ Dee Masters ...
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Court of Appeal in Mencap: The end of minimum wage for sleep-ins when asleep?

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Nathaniel Caiden considers today’s Court of Appeal judgment in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad in which Caspar Glyn QC and Chesca Lord appeared for Mr Shannon. The Court of Appeal in   Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad   [2018] EWCA Civ 1641were concerned with the issue of whethe...
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Trafficking victim awarded High Court damages in minimum wage and harassment claims

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Anna Beale represented the claimant, Ms Ajayi, a migrant domestic worker, in this unusual High Court claim brought against her former employers, Mr and Mrs Abu, for payment of the minimum wage, harassment, breach of contract and personal injury. In August 2017, the court found that the “family worker” exemption to the requirement to pay the minimum...
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Algorithms, apps & artificial intelligence 2: Can data protection laws be used to challenge discriminatory tech?

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New paper from Cloisters’ Robin Allen QC and Dee Masters examining discriminatory technology. In our first piece , which we initially published in November 2017, we explored the interplay between technology and the Equality Act 2010 (‘ EA 2010 ’) concluding that algorithms, apps and artificial intelligence (‘ AI ’) have the potential to give rise t...
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Assisted suicide, Conway and the Human Rights Act

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Catriona Stirling considers the Court of Appeal’s judgment yesterday in R (Conway) v Secretary of State of Justice. Cloisters’ Catherine Casserley was intervening on behalf of Not Dead Yet UK. The Court of Appeal yesterday handed down its judgment in the case of R(Conway) v Secretary of State for Justice , the latest in a long line of challenges br...
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Whistleblowing. In tune again.

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The Court of Appeal’s Judgment in Kilraine v London Borough of Wandsworth [2018] EWCA Civ 1436 is considered by Adam Ohringer . To benefit from whistleblower protections, a worker must first show that she made a ‘disclosure qualifying for protection’ under s.43B of the Employment Rights Act 1996.  Until 25 June 2013 it was sufficient to show t...
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Zero-Hours Contracts and the Part-Time Workers Regulations: Roddis v Sheffield Hallam University UKEAT/0299/17

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Cloisters' pupil Jonathan Cook explores Zero-Hours Contracts and the Part-Time Workers Regulations in the case of Roddis v Sheffield Hallam University UKEAT/0299/17 Specialist employment and discrimination barrister  David Massarella acted for the successful Appellant in the EAT in this case which examined how Tribunals should approach ‘z...
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Religion or belief and GORs. Bumper CJEU Round-Up, Part 2

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In the second part of this two-part blog, Cloisters’  Schona Jolly QC  and  Sarah Fraser Butlin  look at important new developments from the CJEU on the genuine occupational requirement in the context of religion or belief discrimination in the Framework Directive. When does a requirement to profess a faith, or to follow a parti...
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The long-awaited Pimlico Plumbers decision: is it all that it was cracked up to be?

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Cloisters’ Sarah Fraser Butlin analyses the important Supreme Court case on worker status which was handed down today. For those of us involved in the gig economy and other employment status cases, the long awaited judgment of the Supreme Court in Pimlico Plumbers has arrived.  But does it answer all the questions that have been buzzing around...
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A new dawn for the Charter? Bumper CJEU Round-Up,  Part 1

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In a two-part blog, Cloisters’ Schona Jolly QC and Sarah Fraser Butlin look at important new developments from the CJEU on the Charter of Fundamental Rights, religion or belief discrimination and working time. It’s been something of a bumper few weeks at the European Court of Justice in Luxembourg (‘CJEU’) where an expansive use of the Charter of F...
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Freezing orders in support of employment tribunal proceedings: The European dimension

Adam-Ohringer
Adam Ohringer looks at the Opinion of the Court of Session (Lord Tyre in the Outer House) in AA v The Secretary of State for Business, Energy and Industrial Strategy [2018] CSOH 54 . The rate of non-payment of awards made against employers by employment tribunals is scandalous. A 2013 study by the Department for Business Innovation & Skills fou...
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Lender not obliged to offer different service as reasonable adjustment (Green v Southern Pacific Mortgage Ltd)

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Property Disputes analysis: Following the Court of Appeal’s judgment in Green v SouthernPacific Mortgage Ltd, Cloisters' barrister  Declan O’Dempsey , advises that practitioners should identify the service that is being offered to the public or a section of thepublic with some precision. Read the full article here .

EAT upholds courier worker status: Addison Lee v Gascoigne

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In this blog, Rachel Crasnow QC considers the latest instalment in the Addison Lee litigation ( Addison Lee v Gascoigne ), a case in which Cloisters’ Tamar Burton represented the successful claimant at first instance and on appeal. She was instructed by the Independent Workers Union of Great Britain. Overview   The claimant (“C”) had been a cy...
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Tribunal erred in rejecting Shared Parental Leave claim

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Hextall v Chief Constable of Leicestershire Police EAT allows appeal: ET erred in its dismissal of indirect discrimination claim.  Rachel Crasnow QC , specialist in workplace rights, considers the latest appeal in the Shared Parental Leave saga. SUMMARY : Yesterday the EAT found that the ET erred in adopting for the purposes of Mr Hextall’s in...
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What is the price of a breach of covenant?

Jacques Algazy QC and Adam Ohringer  consider the recent Supreme Court case of Morris-Garner v One Step (Support) Ltd [2018] UKSC 20 , which examined the availability of so-called Wrotham Park damages in claims for breach of contract.  The facts of the case were startlingly simple, as was the legal issue which arose; the Judgment of the C...
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Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC – what are the implications of the Supreme Court’s judgment?

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Nathaniel Caiden considers today’s Supreme Court judgment in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood [2018] UKSC  in which Caspar Glyn QC and Tom Brown successfully represented Mrs Haywood. Today’s Supreme Court judgment has identified a standardised implied term when giving written notice of dismissal (i.e., a term implie...
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Such a clear dividing line? Maternity Leave and Shared Parental Leave: the EAT judgment in Ali v Capita UKEAT/0161/17/BA.

Rachel-Crasnow
On 11 April 2018 the EAT overturned the direct discrimination finding of the Tribunal in Ali v Capita Customer Management Ltd concerning whether employers who offer enhanced maternity pay must also offer enhanced Shared Parental Pay.  Rachel Crasnow QC considers the judgment in this blog. Cloisters' Chris Milsom acted for the intervener Workin...
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Acas early conciliation effect on tribunal time limits and the decision of Luton BC v Haque EAT/0180/17/JOJ

Navid-Pourghazi
Navid Pourghazi   considers today’s judgment by the Employment Appeal Tribunal (EAT) in Luton BC v Haque , which concerned how the ACAS early conciliation provisions affect Tribunal time limits, and summarises the simple approach to take in calculating time limits following the most recent case law, drawing from submissions made by the appella...
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Reflecting on International Women's Day: A view from Cloisters by Rachel Crasnow QC

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2017 - 2018 has been a time of great change for gender politics worldwide. The #MeToo and #TimesUp campaigns look to run and run: this affects all our workplaces.  The gender pay gap and its complex causes are part of our working lives at Cloisters as well; from the cases that myself and my colleagues have lent our expertise to for both sides,...
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The end of the ‘sex taint’ argument in equal pay: McNeil v Commissioners for HM Revenue and Customs

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Robin Allen QC and Anna Beale consider the implications of the EAT’s decision in McNeil v Commissioners for HM Revenue and Customs [ 1] , one of the first appellate cases to consider what is required to show “particular disadvantage” in an equal pay claim based on indirect discrimination under the Equality Act 2010. Previous formulations of the tes...
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12 Week rights for agency workers: Kocur v Royal Mail

Tom Coghlin QC considers the important judgment of the Employment Appeal Tribunal (EAT) in Kocur v Royal Mail and anor UKEAT/0181/17 , a decision which brings much-needed clarification to the rights of agency workers to the same basic working and working conditions under the Agency Worker Regulations 2010. Nathaniel Caiden of Cloisters appeared for...
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When does ‘stand-by’ work constitute working time? - Judgment of 21 February 2018, Ville de Nivelles v. Rudy Matzak, Case C 518/15.

In this blog Andrew Buchan considers Wednesday’s judgment by the Court of Justice of the European Union on stand-by work. Why is this case important? It explains the effect of the Working Time Directives on two different types of stand-by systems. One requiring ‘permanent accessibility’ (i.e. to be contactable off the work premises) and the other r...
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Collective redundancy and pregnant workers - Porras Guisado v Bankia SA Case C-103/16

In this blog Sally Robertson considers yesterday’s judgment by the Court of Justice of the European Union on pregnancy and collective redundancies - Porras Guisado v Bankia SA Case C-103 Last September, in the context of whether a pregnant woman should have been given priority in a collective redundancy exercise, Advocate General Sharpston’s Opinio...
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New Paper by Rachel Crasnow QC, Discrimination Law in 2018: Pregnancy, Maternity and Parental Rights

Employment specialist Rachel Crasnow QC  has published a new paper entitled Discrimination Law in 2018 . Rachel's paper focuses on "issues that are thrown up by working adults juggling domestic and professional life." including pregnancy, maternity and parential rights. In this new paper Rachel explains how "this area of the law is never stati...
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New paper 'Discrimination Law in 2018' by Robin Allen QC

Robin Allen QC has released a new paper entitled: Discrimination Law 2018. In his new paper, Robin discusses new cases concerning Sexual Orientation and Religion or Belief as well as Transgender rights particularly in relation to marriage. He explains that radical social changes are occuring as a result of the prohibition on both sexual orientation...
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Constructive knowledge of disability: Donelien v Liberata UK Ltd [2018] EWCA Civ 129

In this blog Nathaniel Caiden considers yesterday’s judgment by the Court of Appeal that concerned constructive knowledge of disability - Donelien v Liberata UK Ltd [2018] EWCA Civ 129 (in which Tom Brown appeared throughout for the successful party). HR professionals, employers, lawyers and courts all have to deal with the sometimes fraught questi...
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Is Enhanced Shared Parental Pay Legal?

The EAT will hear the appeal in Ali v Capita Customer Management Ltd today on the issue of whether employers who offer enhanced maternity pay must also offer enhanced Shared Parental Pay.  The joined appeal of Hextall v Chief Constable of Leicestershire Police will take place in January 2018.  Siân McKinley considers the significance of t...
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Baker v Abellio London Ltd: Are employers required to get documents proving workers’ rights to work?

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No, according to the judgment of the EAT in Baker v Abellio London Ltd . Ruaraidh Fitzpatrick, a pupil at Cloisters considers this important judgment in which Chris Milsom represented the Claimant. Background The Claimant, Mr Baker, is a Jamaican national with the right to live and work in the United Kingdom. He was employed as a bus driver by the ...
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Most of the Brexit rebels are lawyers. Maybe experts are useful after all.

Human rights and equalities barrister Schona Jolly QC has written an opinion piece in The Guardian about the profound flaws with the EU Withdrawal Bill and why lawyers, in particular, are worried.  "Without the intervention of 11 highly qualified Tory MPs, the government would have almost unchecked power over Brexit. Experts, it turn...
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Algorithms, Apps & Artificial Intelligence: The Next Frontier in Discrimination Law?

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Robin Allen QC and Dee Masters from Cloisters consider the interplay between technology and discrimination law in this article. Overview How often does the media depict the relentless increase in technology as a danger to our  health , our  children  and our  security ?  More recently, commentators have started to identify ...
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Denial of UK State Pension to Transgender Pensioner Constitutes Direct Sex Discrimination

Denial of UK State Pension to male-to-female trans pensioner without a Gender Recognition Certificate constitutes direct sex discrimination contrary to EU Directive 79/7. In MB v Secretary of State for Work & Pensions , Advocate General Bobek considers that the requirement for a trans pensioner to be unmarried in order to qualify for a state pe...
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Time Limits under the Human Rights Act 1998: what is a “course of conduct”?

Anna Beale discusses the Supreme Court’s interpretation of the time limit provisions contained in the Human Rights Act 1998 in O’Connor v Bar Standards Board [2017] UKSC 78 The Statutory Provisions As will be known to most readers, the Human Rights Act 1998 (‘HRA 1998’) provides, in section 7(5)(a), that any proceedings brought against a public aut...
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Essop & Naeem in the Supreme Court: giving answers and provoking new questions in indirect discrimination

Cohabitees’ Human Rights breached by ineligibility for Bereavement Award

Specialist personal injury and clinical negligence barrister Linda Jacobs discusses Smith v (1) Lancashire Teaching Hospitals NHS Foundation Trust (2) Lancashire Care NHS Foundation Trust and (3) The Secretary of State for Justice [2017] EWCA Civ 1916 : The Court of Appeal (the Master of the Rolls, McCombe LJ and Sir Patrick Elias) has considered t...
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The death of holiday pay has been greatly exaggerated, but has the King slain Bear Scotland?

Caspar Glyn QC considers the decision of C‑214/16 King v The Sash Windows Workshop Limited which was handed down today. Summary The Court of Justice of the European Union has been saying, in its judgments over the past 11 years again and again and, yes, again that the right to paid holiday is a central European right that can’t be interpreted restr...
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Ayodele v Citylink: burden of proof orthodoxy restored

Daniel Dyal considers the latest decision of the Court of Appeal on the burden of proof. It was 10.29 am on 10 August 2017 and all employment lawyers were sure they understood how the burden of proof provisions at s.136 Equality Act 2010 worked. It was all about Igen v Wong [2005] ICR 931 with a dash of refinement from Madarassy v Nomura Internatio...
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Paul Epstein QC and Catherine Casserley shortlisted for The Legal 500 UK Awards 2018

  Cloisters is delighted to announce that Paul Epstein QC has been shortlisted for Employment Silk of the Year by The Legal 500 alongside Catherine Casserley for Employment Junior of the Year. The Legal 500 conduct their research over many months and hold interviews with in-house counsel, law firms and sets in the UK. This nomination recognise...
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Martin Seaward 'Fire Risk Assessment' for the Residential Property Tribunal

                    Specialist personal injury barrister Martin Seaward delivered a talk on 'Fire Risk' yesterday to the London region of the Residential Property Tribunal. The talk covered the statutory history of regulations from the Great Fire of London in 1666 and gave a review of the current st...
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Sarah Fraser Butlin Instructed in Groundbreaking Case

Cloisters’ Sarah Fraser Butlin is instructed as junior to John Hendy QC in the ground-breaking case by the IWGB seeking recognition for outsourced workers. If the IWGB is successful the case could open the doors for workers throughout the UK to collectively bargain with their de-facto employer as well as their direct employer.  For further pre...
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Uber judgment to be handed down on Friday, 10 November

Judgment will be handed down by the Employment Appeal Tribunal in the case of Aslam & Farrar v Uber on Friday, 10 November at 10:30am.  A copy of the Employment Tribunal judgment which is being appealed is available here . Cloisters’ Jason Galbraith-Marten QC and Sheryn Omeri , instructed by Paul Jennings and Rachel Mathieson of Bates Well...
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Daphne Romney QC spoke on Radio 4's Today Programme

There are allegations of sexual harassment from Hollywood to Westminster and in many workplaces, big and small. But what are the mental, physical and economic costs of raising a claim and going to an Employment Tribunal? Cloisters’ Daphne Romney QC spoke to Nick Robinson on Radio 4’s Today Programme. Her clip starts 53.48 minutes in here .

Benkharbouche: EU Law reigns supreme (for now) & other important lessons

The legal press has mostly viewed Benkharbouche v SOS for Foreign and Commonwealth Affairs  [2017] UKSC 62 in the Supreme Court [“SC”] as a case which simply addresses the interplay between State Immunity and the Employment Tribunals.  But, the other significance to this case is that it contains commentary the on the supremacy of EU Law, ...
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Cloisters is delighted to announce that it has been ranked in Chambers and Partners 2018 as a leading set in the field of employment, personal injury and clinical negligence. We also have ranked individuals in sport and civil liberties.

Cloisters is delighted to announce that it has been ranked in Chambers and Partners 2018 as a leading set in the field of employment, personal injury and clinical negligence.  We also have ranked individuals in sport and civil liberties.

Discrimination by qualification bodies: Michalak v General Medical Council [2017] UKSC 71

The Supreme Court has today put to rest a long-running ambiguity in how anti-discrimination laws can apply to qualification bodies such as the General Medical Council (“the GMC”). Adam Ohringer of Cloisters , led by William Edis QC of 1 Crown Office Row represented the successful Claimant, Dr Michalak, in the Supreme Court.  Robin Allen QC &nb...
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The Place of Gender in Equality Law

Robin Allen QC, Rachel Crasnow QC and Catherine Casserley will be speaking at the DLA Equality Law Conference on 3 November. Robin Allen QC will be chairing a panel discussion on the future of gender discrimination and Rachel Crasnow QC will be speaking on the topic: "Flexible working:  the key to unlocking the gender pay gap". Catherine Casse...
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Reach of whistleblowing provisions put to the test in Bamieh v FCO and ors

The Employment Appeal Tribunal will consider the landmark appeal of Maria Bamieh v FCO and ors next week. Ms Bamieh was a British prosecutor seconded by the FCO (along with others) to work for Eulex Kosovo, an EU mission in Kosovo. Ms Bamieh alleges that she blew the whistle in relation to judicial corruption and was subjected to serious detrimenta...
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Tribunal rejects claim of religious discrimination by NHS Non-Executive Director opposed to same-sex adoption (Page v NHS Trust Development Authority)

Last week London South Employment Tribunal dismissed a claim by Richard Page for religious discrimination. The case concerned the NHS Trust Development Authority’s decision that he was not a suitable person to hold office as a Non-Executive Director in the NHS because of his conduct in publicising his opposition to same-sex adoption in the national...
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Al-Hijrah School: Gender segregation as direct discrimination and other lessons

Rachel Barrett and Siân McKinley consider the recent Court of Appeal judgment on gender segregation,   HM Chief Inspector of Education, Children’s Services and Skills v The Interim Executive Board of Al-Hijrah School , and the broader implications for discrimination law. Introduction The Court of Appeal has held that complete segregation of gi...
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Cloisters barristers seek to make new whistleblowing law for judges

Until the case of Gilham v MOJ there was no authority addressing whether judges work under contracts for whistleblowing purposes. DJ Gilham complained of whistle-blowing detriment to the ET after she made protected disclosures at Warrington county court about workplace pressures and potential courtroom dangers to civil judges in the light of &...
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Unintentionally wide non-compete clause: A warning from the Court of Appeal in Egon Zehnder Ltd v Tillman

Having previously blogged on this case (see here for that blog on Egon Zehnder Ltd v Tillman [2017] EWHC 1278 (Ch)), Jacques Algazy QC and Nathaniel Caiden consider the repercussions of the Court of Appeal judgment in Tillman v Egon Zehnder Ltd [2017] EWCA Civ 1054.   Background The facts of the case are summarised in the previous blog (see he...
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A Guide to using Statistics in Employment and Equality Litigation

Numbers can be anathema to many lawyers. Yet statistics are a useful weapon in the litigation armoury. This week the Government released its Race Disparity Audit which provides a wealth of such statistics and is a timely reminder of the role that they can play in litigation.  Tom Gillie discusses three recent examples of how statistics can be ...
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Cloisters' Legal 500 Rankings

Cloisters is delighted to announce that it is has been ranked as a leading employment, clinical negligence and personal injury set in the latest Legal 500 rankings which were published today.  Many of our barristers have been singled out for particular praise  in the employment, human rights, clinical negligence, personal injury and inque...
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Regulatory Digest July- September 2017

Brookman v GMC [2017] EWHC 2400 (admin) -          The High Court overturned the MPTS decision to erase from the register a doctor accused of sexual misconduct. HC held that the Tribunal had erred in failing to postpone the hearing and order a further health assessment of the doctor before reaching a dec...
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The role of the Legally Qualified Chair at the MPTS

Sally was appointed in July 2017 to sit as a Legally Qualified Chair of the MPTS. The MPTS was created as an independent Tribunal system, to hear cases of fitness to practice for the GMC. Those who sit as legal and lay members are independent of the GMC. The unique system of the MPTS takes some elements of Civil Court Procedure and some of Tribunal...
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Professional Disciplinary Case Digest – July 2017

A summary of legally noteworthy appeals in the High Court against decisions of professional disciplinary panels.   Please note that discussion below is based on summaries of judgments that were delivered ex tempore.  1.         Watters v Nursing & Midwifery Council QBD (Admin) (Cheema-Grubb J) 0...
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No right to assisted death: Conway v Secretary of State for Justice

In recent years, disabled and terminally ill applicants have brought repeated legal challenges to section 2 of the Suicide Act 1961, which makes it an offence intentionally to do an act capable of encouraging or assisting the suicide or attempted suicide of another.  Anna Beale considers Conway v Secretary of State for Justice , the most recen...
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Catherine Casserley is lecturing in St Petersburg

Catherine Casserley is lecturing on the UN Convention on the Rights of Persons with Disabilities in St Petersburg at a workshop on 29 September 2017.  The workshop is for Russian human rights lawyers specialising in disability and is a project organised jointly by Citizens Rightswatch International, a St Petersburg Human Rights NGO, and the Un...
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Technology Conference, 14th September 2017 in London

Technology Conference being held on 14th September 2017 at the Pullman Hotel, King/s Cross, London.  Please click here for full information.

Spying at work: Has the European Court of Human Rights really struck a blow for employees?

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To misquote Mark Twain, reports that the right to privacy in the workplace is dead have been greatly exaggerated. However, media speculation that employers can no longer monitor the communications of their employees is inaccurate. Siân McKinley comments on the recent judgment of Barbulescu v Romania and provides some practical points on how to avoi...
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Equal value claims: the applicability of Article 157 and the meaning of a “Single Source”

The recent decision in ASDA Stores v Brierley [1] is the next episode in the long-running saga in which thousands of predominantly female retail workers are bringing equal pay claims citing distribution staff, who are predominantly male, as their comparators. This time the issue was whether the ET in Manchester had been correct in holding that the ...
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Not all in the family: migrant domestic worker who had to “pay” for accommodation and food wins minimum wage claim.

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In a minimum wage claim, brought by a migrant domestic worker, the High Court has addressed the “family worker” exemption found in the National Minimum Wage Regulations 2015, specifically the provision relating to “deductions” in respect of accommodation and meals. Nathan Roberts considers the case and the trap the Defendants set for themselves. An...
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A Landmark Ruling on the Burden of Proof in Equal Pay: Armstrong & Others v Glasgow City Council [2017] CSIH 56

On Friday the Court of Session handed down an important judgment on the burden of proof and also the evidence needed in cases in equal pay claims where the claimants challenge their employer’s Job Evaluation Scheme ( Armstrong & Others v Glasgow City Council [2017] CSIH 56). DAPHNE ROMNEY QC considers the judgment and its implications. Introduc...
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A radical reconsideration of the burden of proof: Efobi v Royal Mail Group Ltd (EAT)

In an important decision on the correct interpretation of the burden of proof provisions in the Equality Act 2010, Efobi v Royal Mail , Tom Coghlin and Navid Pourghazi successfully appealed against an employment tribunal’s decision to dismiss a claimant’s race discrimination complaints. S.136 of the Equality Act 2010 provides for a two-stage burden...
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The ever-widening scope of vicarious liability

Adam Ohringer considers the recent judgment of Various Claimants v Barclays Bank plc [2017] EWHC 1929 (QB)  and its implications on vicarious liability.   Introduction A company has been held vicariously liable for the acts of an independent contractor.  In the ground-breaking Judgment of Nicola Davies J in Various Claimants v Barcla...
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Voluntary Overtime and Holiday Pay

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Nathaniel Caiden considers the recent Employment Appeal Tribunal (EAT) judgment in Dudley MBC v Willetts UKEAT/0334/16/JOJ that concerns the inclusion of voluntary overtime normally worked in calculating holiday pay.   Introduction On 31 July 2017, when many were actually on holiday, the EAT handed down the latest judgment dealing with holiday...
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Professional Disciplinary Case Digest – May & June 2017

A summary of legally noteworthy appeals in the High Court and Court of Appeal against the decisions of professional disciplinary panels. Professional Standards Authority v (1) Health & Care Professions Council (2) Benedict Doree [2017] EWCA Civ 319   A decision to impose a caution order for a period of five years on a registered prosthetis...
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The EAT issues guidance on in-time amendment applications

Navid Pourghazi considers the recent decision in Gillett v Bridge 86 Ltd (UKEAT/0015/17/DM) where the EAT overturned a refusal of an in-time application to amend a claim form and provided helpful guidance on how Tribunals should deal with such applications in the future.  A copy of the judgment is available here . Analysis The Claimant present...
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The Supreme Court, ET fees and access to justice: Stopping the government in its tracks

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Caspar Glyn QC , Schona Jolly QC and Sian McKinley consider the implications of today’s seismic decision from the Supreme Court which ruled that ET fees are unlawful: R (on the application of UNISON) v Lord Chancellor [2017] UKSC 51.   Judgment Lord Reed, delivering the lead judgment, held the Employment Tribunals and the Employment Appeal Tri...
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High Court to consider the human rights implications of assisted suicide

Monday 17 th July 2017 sees the start in the High Court  of  Conway v Secretary of State for Justice, with Noel Conway challenging section 2 of the Suicide Act as being in breach of his rights under the Human Rights Act 1998 to an assisted suicide. Catherine Casserley of Cloisters Chambers is representing Not Dead Yet UK Ltd  an orga...
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Spousal pensions: SC overturns inequality for same sex couple

Tamar Burton considers, in this blog, the judgment in the Supreme Court case of Walker v Innospec Limited and others [2017] UKSC 47 which was handed down on 12 July 2017.  The case concerns equal access to a spousal pension for a gay man. The issue for the Court was whether paragraph 18 of Schedule 9 of the Equality Act 2010 is incompatible wi...
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Court of Appeal considers the public interest test for protected disclosures

Sheryn Omeri considers the new judgment of Chesterton Global Limited v Nurmohamed, a recent whistleblowing case, in this blog. While much judicial ink has been spilled concerning just about every other aspect of the provisions of the Employment Rights Act 1996 (‘ERA’) which provide protection to whistleblowers, the requirement that a worker “reason...
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The Future Effects Principle in European law: Cloisters wins reference to the Court of Justice on behalf of hundreds of part-time judges whose pensions have been calculated on a limited basis.

The Supreme Court has this morning handed down judgment in the cases of O’Brien and Miller and ors v Ministry of Justice . The Supreme Court has made a reference to the Court of Justice of the European Union. The cases concern discrimination against part-time judges in the calculation of pensions. The issue is whether periods of service as a part-t...
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Religious discrimination in the workplace: the European Court of Justice confronts a challenge:

Schona Jolly QC examines the implications of Achbita and Bougnaou in the current edition of European Human Rights Law Review ( E.H.R.L.R. (2017) 3, 308)

Farmah v Birmingham City Council: A warning for all multiple claims

Daphne Romney QC considers the recent far-ranging EAT decision of Farmah & ors v Birmingham City Council , a copy of which is available here . Farmah does not just affect multiple equal pay claims brought in an Employment Tribunal (ET). It affects all multiple claims brought in an ET, for example TUPE and failure to consult or unilateral variat...
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Sian McKinley to speak at the LSE

Sian McKinley spoke about Corporate Restructuring Law for the London School of Economics on 23 June, focusing on employers’ obligations when restructuring business in UK and the impact of TUPE.

Appeal court to scrutinise legality of enhanced shared parental pay

Appeal court to scrutinise legality of enhanced shared parental pay
Rachel Crasnow QC and Siân McKinley of Cloisters look at the recent decision of Ali v Capita Customer Management Ltd (ET1800990/2016) regarding enhanced Shared Parental Pay. For the first time, the employment tribunal has upheld a complaint of sex discrimination from a male employee who was refused enhanced Shared Parental Pay. While this decision ...
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‘Promoting’ restrictive covenants – the start of a new direction of travel post Egon Zehnder Ltd v Tillman

‘Promoting’ restrictive covenants – the start of a new direction of travel post Egon Zehnder Ltd v Tillman
Jacques Algazy QC and Nathaniel Caiden consider whether the case of Egon Zehnder Ltd v Tillman [2017] EWHC 1278 (Ch) marks the start of a trend whereby restrictive covenants against employees will be increasingly upheld owing to an employer’s ‘future intention’ of the employees’ progress (that is promotions and increasing seniority).     ...
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Identifying direct discrimination in “proxy cases” after R (on the application of Coll) v Secretary of State for Justice

Identifying direct discrimination in “proxy cases” after R (on the application of Coll) v Secretary of State for Justice
Dee Masters considers the recent Supreme Court decision of R (on the application of Coll) v Secretary of State for Justice [2017] UKSC 40 which was handed down on 24 May 2017.  A copy of the judgment is available here . Overview Coll is compulsory reading for discrimination lawyers. Lady Hale, who provided the leading judgment, examines the ex...
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What effect should retirement have on disciplinary process?

What effect should retirement have on disciplinary process?
Clarke v General Optical Council [2017] EWHC 521 (Admin) Patricia Hitchcock QC   The thorny issue of retirement during regulatory proceedings came before Fraser J in March by way of appeal under the Opticians Act 1989, s23. The reasoning of his careful judgment has wide application and will be of interest to other regulatory bodies, as well as...
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Claire McCann to co-lead “LGB….But What About the T?” workshop on 24 May

Claire McCann to co-lead “LGB….But What About the T?” workshop on 24 May
Claire McCann , one of the barristers in Cloisters’ award-winning Employment and Equality Team, will be co-leading a workshop next week at the Employment Lawyers Association Annual Conference in central London (24 th May 2017), entitled “LGB….But What About the T? A Conversation about Trans Equality, its Legal Context and Practical Implications”. I...
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“COME OUT FOR HUMAN RIGHTS” #IDAHOT #IDAHOTB….17TH MAY 2017

“COME OUT FOR HUMAN RIGHTS” #IDAHOT #IDAHOTB….17TH MAY 2017
Today, 17 th May 2017, is International Day Against Homophobia, Transphobia and Biphobia, commemorating the 1990 decision of the World Health Organisation to remove homosexuality from the list of mental disorders. Every year, policy makers, opinion leaders, the media and the general public are challenged to address the urgent need to combat violenc...
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Rachel Crasnow QC & Daphne Romney to speak at the first ELBA event on Well-Being At the Bar

Rachel Crasnow QC & Daphne Romney to speak at the first ELBA event on Well-Being At the Bar
On 17 May Rachel Crasnow QC and Daphne Romney QC are to speak at the first ELBA event on Well-Being At the Bar. Entitled “ "Keeping each other sane: tips for leading a happy legal lif e ”, the seminar builds on the work the Bar Council has developed - see http://www.barcouncil.org.uk/supporting-the-bar/wellbeing-at-the-bar

Rachel Crasnow QC & Sarah Fraser Butlin spoke about diversity on campus at the UHR Annual Conference

Rachel Crasnow QC & Sarah Fraser Butlin spoke about diversity on campus at the UHR Annual Conference
Rachel Crasnow QC and Sarah Fraser Butlin spoke to the UK’s leading University HR directors at the UHR Annual Conference in Newcastle on 10 March about diversity on campus, focusing on the lawfulness of topics such as no-platforming and safe spaces as well as the importance of addressing ongoing problems of harassment and equal pay.

Professional Disciplinary Case Digest – April 2017

A summary of legally noteworthy judicial reviews and High Court appeals regarding professional disciplinary panels and their decisions.   R (Zai Corporate Finance Ltd) v AIM Disciplinary Committee of the London Stock Exchange PLC & Anor [2017] EWHC 778 (Admin)              o Heari...
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Cloisters contribute to practitioners’ guide on religious discrimination

Cloisters contribute to practitioners’ guide on religious discrimination
Schona Jolly QC and Navid Pourghazi have written an introductory guide to religious discrimination in the workplace for Westlaw’s Insight.  Westlaw describe Insight as “an online, dynamic, continually updated and ever-growing encyclopaedia of UK law”. Content on the website is aimed at practitioners with a broad understanding of the law who ar...
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Court of Appeal raises prospect of whistleblowing protection for 54,000 Junior Doctors

Court of Appeal raises prospect of whistleblowing protection for 54,000 Junior Doctors
The Court of Appeal has handed down its decision in Day v Lewisham NHS Trust & Health Education England in which Chris Milsom acted for the successful appellant. The case concerns the status of the relationship between Dr Day (and indeed all 54,000 junior doctors in the UK)  and Health Education England (HEE) who interviews, deploys and ma...
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Sally Robertson to deliver sex discrimination workshop at ERA’s EU Gender Equality Law seminar

Sally Robertson to deliver sex discrimination workshop at ERA’s EU Gender Equality Law seminar
Between 4-5 May, Sally Robertson becomes the latest of Cloisters' barristers to take part in the Academy of European Law’s (ERA) programme of conferences and training events. Now in its 25 th Jubilee year, more than 125,000 European jurists have participated at ERA events. Cloisters barristers, including Paul Epstein QC , Rachel Crasnow QC , Cather...
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Cloisters has entered its team in this year’s London Legal Walk, which is taking place on 22 May 2017

Cloisters has entered its team in this year’s London Legal Walk, which is taking place on 22 May 2017
The London Legal Walk is an iconic annual event in which thousands of barristers, solicitors, judges, and law students take part in a sponsored 10km walk in Central London to raise money for free legal advice centres. In 2016, over 10,000 people took part and raised over £740,000. Cloisters has a proud history of fundraising for this event, and our...
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Sleep-in workers revisited: a multi-factorial approach to eligibility for the minimum wage

Sleep-in workers revisited: a multi-factorial approach to eligibility for the minimum wage
Anna Beale considers the most recent guidance from the EAT on the vexed question of whether workers should receive the minimum wage for “sleep in” shifts. Keen readers of this site may recall my critical blog on the EAT decision in Shannon v Rampersad . In that case, HHJ Peter Clark decided that an ‘on call night care assistant’ in a residential ho...
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Dress Codes at Work, Discrimination or good for business?

Dress Codes at Work, Discrimination or good for business?
Dame Laura Cox, Sam Smethers, Rachel Crasnow QC and John Graham will be speaking at our event Dress Codes at Work today to be held at The Law Society. The event will commence from 18:30 till 19:45 which will be followed by a networking and drinks session. This will give delegates the opportunity to receive insights on the pitfalls and latest develo...
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Cloisters’ barristers in Supreme Court appeal succeed in overturning smoking ban in psychiatric hospital

Cloisters’ barristers in Supreme Court appeal succeed in overturning smoking ban in psychiatric hospital
The Supreme Court handed down judgment today in the case of McCann v The State Hospitals Board for Scotland [2017] UKSC 31. Cloisters’ Jonathan Mitchell QC together with David Leighton and Rachel Barrett (also of Cloisters) acted for the successful appellant, a patient in the Scottish high security State Hospital. Mr McCann objected to the introduc...
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Professional Disciplinary Case Digest – March 2017

A summary of legally noteworthy Judicial Reviews and High Court Appeals against the decisions of professional disciplinary panels. Newell-Austin v Solicitors Regulatory Authority [2017] EWHC 411 (Admin) Challenging a decision by the SRA striking the Applicant from the Solicitors’ Roll for professional misconduct A Solicitor can lack integrity witho...
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Declan O'Dempsey to discuss "Litigating Human Rights in the EU" at Maynooth University

Declan O'Dempsey to discuss "Litigating Human Rights in the EU" at Maynooth University
Declan O’Dempsey will be speaking on “Litigating Human Rights in the EU” at  Maynooth University Department of Law at the international Jean Monnet Summer School “The EU and Human Rights in a Time of Crisis” on 19 June 2017. How will the EU’s commitment to human rights influence its relationship to the UK post-Brexit?  The summer school e...
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Disability check up by the EHRC

Disability check up by the EHRC
Sally Cowen analyses the latest research on the treatment of disabled people in the UK The Equality and Human Rights Commission (EHRC) has published its new report into the state of equality and human rights for disabled people in the UK on 3 April 2017. The title ‘Being Disabled in Britain: a Journey Less Equal’ rather sums up the whole report, wh...
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No “reason why”: Essop and Naeem in the Supreme Court

No “reason why”: Essop and Naeem in the Supreme Court
Robin Allen QC and Anna Beale consider the latest case on indirect discrimination and ask the pressing question: are equal pay cases suddenly significantly easier for Claimants? The Supreme Court has today handed down judgment in the cases of Essop and others v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice . The judgment...
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Declan O'Dempsey to speak at the Council for Racial Equality’s Inaugural Human Rights and Equality event

Declan O'Dempsey to speak at the Council for Racial Equality’s Inaugural Human Rights and Equality event
On 6 April 2017 Declan O’Dempsey will be at UNISON’s headquarters in Belfast addressing the Northern Ireland Council for Racial Equality’s Inaugural Human Rights and Equality event: “ Brexit and Human Rights Protections ” on “How businesses can use the law to combat racism”. Declan’s talk will cover the way in which employers and businesses can use...
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Schona Jolly QC to speak at Human Rights after Brexit alongside Keir Starmer MP in Westminster

Schona Jolly QC to speak at Human Rights after Brexit alongside Keir Starmer MP in Westminster
Schona Jolly QC will be speaking at Human Rights after Brexit on 26 th April at Westminster (RSVP for details), alongside fellow panelists Keir Starmer MP (Shadow Secretary of State for exiting the European Union), Polly Toynbee (The Guardian), Narmada Thirangama (Unison), and Lord Stewart Wood. This is an opportunity to discuss human rights, equal...
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Schona Jolly QC instructed to represent Deliveroo drivers in the latest challenge to employment conditions in the gig economy

Schona Jolly QC instructed to represent Deliveroo drivers in the latest challenge to employment conditions in the gig economy
Following the recent successes of Cloisters barristers in employment tribunal cases such as Citysprint and Boxer v Excel Group , Schona Jolly QC has been instructed by Leigh Day to represent Deliveroo drivers who are taking legal action against the delivery firm. The claims raise more interesting issues on employment status against the food deliver...
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Cloisters column: Reforming the Soft Tissue Injury (whiplash) Claims Process – Government consultation and reform in the ‘post-truth’ age?

Cloisters column: Reforming the Soft Tissue Injury (whiplash) Claims Process – Government consultation and reform in the ‘post-truth’ age?
Cloisters: Equality and Human Rights in Practic e by Martyn McLeish Recommended reading:   this article on George Osborne’s 2015 proposal. In the 2015 autumn statement the then Chancellor announced proposals for whiplash claims and an increase to the small claims limit in personal injury actions. The Government has now published its Consu...
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No back-peddling - workers’ rights are gaining pace in the gig economy

No back-peddling - workers’ rights are gaining pace in the gig economy
Following the recent decisions of the Court of Appeal in Pimlico Plumbers and the Employment Tribunals in Citysprint and Uber , companies in the gig economy suffered another blow yesterday with the decision in Boxer v Excel Group Services Limited . This case augments the growing number of judgments in which staff that are ostensibly self-employed a...
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Tom Brown succeeds at persuading Court of Appeal to uphold novel High Court judgment for pension loss

Tom Brown succeeds at persuading Court of Appeal to uphold novel High Court judgment for pension loss
Tom Brown , of Cloisters, instructed by Irwin Mitchell, has persuaded the Court of Appeal to uphold a £250,000 judgment for pension loss which he secured in 2014, following the wrongful dismissal of his client, a senior NHS employee. This legally novel case concerned when, at common law, notice takes effect (previous cases have considered when term...
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Caspar Glyn QC and Rachel Barrett to represent claimant in a courier case against Excel

Caspar Glyn QC and Rachel Barrett to represent claimant in a courier case against Excel
Cloisters has been at the forefront of the recent litigation concerning the “gig economy”. Caspar Glyn QC and Rachel Barrett are representing a cycle courier, Andrew Boxer, who is suing Excel with the support of  the Independent Workers Union of Great Britain. Due to its importance it has received press coverage . Mr Boxer asserts that he is a...
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Court of Appeal to hear landmark appeal on whistleblowing protection for junior doctors

Court of Appeal to hear landmark appeal on whistleblowing protection for junior doctors
The Court of Appeal will hear the landmark appeal of Dr Chris Day on 21 March 2017 in which Public Concern at Work has been granted leave to intervene. Dr Day is being represented by Cloisters’ Chris Milsom.  Dr Day argues that 54,000 junior doctors deployed in NHS Trusts by Health Education England (HEE) should be regarded as workers of HEE u...
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Robin Allen QC gives evidence to the Lords Constitution Committee on the crisis in Judicial Recruitment

Robin Allen QC gives evidence to the Lords Constitution Committee on the crisis in Judicial Recruitment
Robin Allen QC , Chair of the Bar’s Equality and Diversity and Social Mobility Committee gave evidence to the House of Lords Constitution Committee on the 15 th March 2017.  The Committee is conducting a follow-up inquiry to its report on 'Judicial Appointments' in light of the slow progress to equality and the startling findings of the Judici...
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-0.75% Ogden Supplement

-0.75% Ogden Supplement
The supplementary tables have now been published on the GAD website on gov.uk (in both an Excel version and a pdf version) along with some accompanying explanatory text. The tables can be accessed here . T he tables are available at the top of the page and the text is at the bottom, under the section headed Details .  The 'Ogden' tables as sta...
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BBC Radio 4 In Touch Interviews Declan O'Dempsey on job discrimination toward the visually impaired

BBC Radio 4 In Touch Interviews Declan O'Dempsey on job discrimination toward the visually impaired
Declan O'Dempsey talks to BBC Radio 4 In Touch about the law relating to discrimination by recruitment agencies as it affects people with visual impairments and the difficulties they face in obtaining information from recruitment agencies and employers who are not willing to make adjustments for people with disabilities. For the full interview plea...
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Achbita & Bougnaoui: A strange kind of equality

Achbita & Bougnaoui:  A strange kind of equality
Schona Jolly QC considers the long awaited CJEU decisions in two recent cases concerning religious dress codes in the work place. What Europe needed right now was a solid, sensible judgment from its top court on religious discrimination at work. It needed perspective, proportionality and a judicial underlining of support for religious minorities ac...
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Fighting for fair pensions

Fighting for fair pensions
Robin Allen QC , Rachel Crasnow QC and Tamar Burton appear in the Supreme Court this morning in the two cases of O’Brien and Miller and ors v Ministry of Justice, which concern discrimination of part-time workers in the calculation of pensions. The issue for the Court is whether the period of service prior the coming into effect of the relevant Dir...
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Professional Disciplinary Case Digest – February 2017

A summary of legally noteworthy Judicial Reviews and High Court Appeals against the decisions of professional disciplinary panels. R(Oriaku) v Nursing and Midwifery Council [2017] EWHC 235 (Admin) Challenging a decision by the NMC not to refer a complaint to the Investigating Committee McTier v Secretary of State for Education [2017] EWHC 212 (Admi...
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First Group v Paulley: Towards Accessible and Inclusive Public Transport?

First Group v Paulley: Towards Accessible and Inclusive Public Transport?
First Group Bus v Paulley is the first UK Supreme Court (or House of Lords) case on reasonable adjustments in non-employment contexts. The case, which was supported by the Equality and Human Rights Commission , has clear significance for wheelchair users and providers of public transport. Further, and despite being frequently (and unhelpfully) depi...
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Pytel V. The Office for Gas & Electricity Market (OFGEM) - new rights for whistle-blowers

Pytel V. The Office for Gas & Electricity Market (OFGEM) - new rights for whistle-blowers
In an important case for whistle-blowers, Paul Michell and Rachel Barrett have successfully argued that words ought to be read into the Utilities Act 2000 to allow the Claimant to continue his whistleblowing claim against OFGEM in the employment tribunal, in circumstances where he would otherwise be committing a criminal offence by bringing it. The...
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Declan O’Dempsey to provide training to the Equality and Human Rights Commission

Declan O’Dempsey to provide training to the Equality and Human Rights Commission
Cloisters is proud to announce that Declan O’Dempsey of Cloisters has been awarded the contract to provide training to the Equality and Human Rights Commission on the use of international treaties in UK law. Catherine Casserley together with Declan will provide the training materials for the course on the 23 rd March this year. The training aims to...
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The -0.75% discount rate

The -0.75% discount rate
When it finally came, the announcement of the discount rate reduction was no damp squib. The differentials will be dramatic: for example, the loss of earnings multiplier to retirement age 70 for a 25 year old man will almost double, from 26.4 to around 51.33 (before applying the non-mortality discount factors). I am not ashamed to admit that my own...
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Public bodies who discriminate – County Court or High Court process?

Public bodies who discriminate – County Court or High Court process?
By Sally Cowen Hamnett v Essex County Council [ 2017] EWCA Civ 6   Judgment given 18 th January 2017 Sally Cowen considers this interesting case concerns the apparent conflict between competing provisions of the Equality Act 2010 in the context of duties to disabled people within the context of Traffic Regulations Orders. The essence of this C...
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New silks 2017: Schona Jolly, Cloisters

New silks 2017: Schona Jolly, Cloisters
Cloisters’ Schona Jolly is one of seven new star silks interviewed by The Lawyer this year. A self-described “reluctant barrister”, Schona Jolly worked at the UN Refugee Agency before being called to the bar in 1999. “I never had grand dreams of silk – I thought I might go on to a big international organisation,” she says. The call of the bar preva...
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Cloisters column part two – ‘Premature Labelling? A child-centred approach to questions of gender identity’

Cloisters column part two – ‘Premature Labelling? A child-centred approach to questions of gender identity’
Cloisters: Equality and Human Rights in Practice This is part two of a two-part series on trans rights from leading equality and human rights barrister Claire McCann at Cloisters. Part one  explores toilets and gender identity. Toilets have not been the only battleground. In fact, hardly a week goes by without a news story about tran...
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Radio 4's PM interviews Chris Milsom on the Court of Appeal's decision in Pimlico Plumbers v Smith

Radio 4's PM interviews Chris Milsom on the Court of Appeal's decision in Pimlico Plumbers v Smith
Chris Milsom appeared on Radio 4’s PM to discuss the decision of the Court of Appeal in Pimlico Plumbers v Smith and its implications on employment status in the gig economy. Chris explains that PP is just one illustration of a wider issue but is nonetheless a welcome instance of ensuring that those who are in a position of economic subordination e...
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Plumbing the depths of employment status as the gig economy gathers steam

Plumbing the depths of employment status as the gig economy gathers steam
Plumbing the depths of employment status as the gig economy gathers steam Akua Reindorf analyses Pimlico Plumbers v Smith in the Court of Appeal and provides a round-up of employment status reports and inquiries. Where are we now? Well over two years have passed since the Employment Appeal Tribunal handed down judgment in Pimlico Plumbers Ltd v Smi...
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Certainty for all: a plea to the Taylor Review by Caspar Glyn QC, Anna Beale & Nathaniel Caiden

Certainty for all: a plea to the Taylor Review by Caspar Glyn QC, Anna Beale & Nathaniel Caiden
In November 2016, the government commissioned a review of modern employment practices. It is being led by Matthew Taylor and will focus on what has become known as the “gig economy”. In this blog, we summarise our written evidence to that review. Our central plea was that our legislators provide certainty for all. In our view this can best be achie...
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Jonathan Mitchell QC named Scottish Lawyer of the week

Jonathan Mitchell QC named Scottish Lawyer of the week
Today, the Times has named Jonathan Mitchell QC of Cloisters and Arnot Manderson Advocates Scottish Lawyer of the week. Jonathan acted for Cumbria, Stockport and Blackpool councils in the landmark Court of Session case of Cumbria CC and Others, 2017 SLT 34, where the court used its extraordinary equitable jurisdiction to enforce orders by the Engli...
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Survivors’ pensions and the Unmarried

Survivors’ pensions and the Unmarried
Rachel Crasnow QC considers the recent judicial review by Denise Brewster for review (reported at [2017] UKSC 8). In this important case about the status of cohabiting partners and the objective justification of socio-economic policy, the Appellant Denise Brewster and her partner Lenny McMullan had lived together for 10 years before he suddenly die...
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Speaking Up – Whistleblowing in the NHS

Speaking Up – Whistleblowing in the NHS
Dr Chris Day features in the BBC Radio Four Documentary File on Four Speaking Up – Whistleblowing in the NHS. Dr Day contends that there is a lack of protection for 43,000 junior doctors whose career progression is governed by the supervising body Health Education England. The Court of Appeal is due to hear the matter in March 2017 by way of an exp...
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Family Court proceedings: gender reassignment and ultra-orthodox Judaism

Family Court proceedings: gender reassignment and ultra-orthodox Judaism
Claire McCann , an expert on trans equality, analyses the competing arguments in the Family Court’s recent assessment of the children’s “best interests” in the unusual context of a transgender parent and the Charedi Jewish community in North Manchester. In Family Court proceedings in Manchester, a trans woman – the father and claimant in J v B and ...
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Cloisters barristers ranked in the UK Bar: Labour and Employment 2017

Cloisters barristers ranked in the UK Bar: Labour and Employment 2017
Who’s Who Legal has identified Cloisters as a leader in its field.  It endorsed 13 barristers at the junior level making Cloisters the most endorsed chambers in this category. Two silks and four juniors were also ranked in the highly rated category. Cloisters is pleased and delighted that our legal experts have been recognised for their work i...
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Paulley: An everyday step?

Paulley:  An everyday step?
Catherine Casserley , junior counsel in the case, and Sally Robertson consider the implications of the Supreme Court decision in Paulley v First Group . On 24 February 2012, Doug Paulley tried to do something most of us would not think twice about. He went to catch a bus. He wanted to get from Wetherby to Leeds to catch a train. The single wheelcha...
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Dame Laura Cox of Cloisters to lead review for Fawcett Society

Dame Laura Cox of Cloisters to lead review for Fawcett Society
Today, it has been announced that Dame Laura Cox from Cloisters will lead a nine-month inquiry for the Fawcett Society. Additionally, Anna Beale , Rachel Crasnow QC and Daphne Romney QC also from Cloisters will join Dame Laura Cox as additional panel members. The review into the UK’s gender discrimination laws will be launched due to the fear of a ...
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Putting Women on the front foot: The joint committee report on high heels and dress codes at work

Putting Women on the front foot: The joint committee report on high heels and dress codes at work
Akua Reindorf considers the implications of the latest recommendations concerning the use of sexist dress codes at work. Summary The Joint Committee report on high heels and dress codes at work shows that discriminatory dress codes can promote the sexualised objectification of women at work, disadvantage people with disabilities, inhibit employment...
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Adesokan v Sainbury's

Adesokan v Sainbury's
Caspar Glyn QC considers the Court of Appeal’s judgment today that an employee can be summarily dismissed for negligence and that a wrongfully dismissed employee cannot normally maintain an ongoing claim for wages. A short but important case from the Court of Appeal was released today. Given the Art 50 decision of the Supreme Court it was a good da...
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A Policy of Uncertainty Won’t Help Workers

A Policy of Uncertainty Won’t Help Workers
Rachel Crasnow QC and Tom Gillie of Cloisters have recently published an article in the New European about the vulnerability of workers’ rights post-Brexit.  The articles argues that the rights of families, agency workers and others could be severely diminished which may damage the wider economy. If the Government wants to reassure the country...
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Judicial pensions and discrimination

Judicial pensions and discrimination
Two hundred and ten full-time judges, across a variety of courts and tribunals, have successfully sued the Lord Chancellor and the Ministry of Justice in the Employment Tribunal following changes to their pensions. A copy of the decision in McCloud & ors v (1) Lord Chancellor and (2) MOD is available here . This blog analyses the implications o...
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BBC Sussex Radio interviews Chris Milsom on the protection disabled people accessing public transport

BBC Sussex Radio interviews Chris Milsom on the protection disabled people accessing public transport
Chris Milsom , one of our experts in discrimination law, featured on BBC Sussex Radio exploring the protection disabled people accessing public transport. This followed high-profile instances of disabled people facing disadvantage in public transport including most recently Mrs Sandra Nighy, a wheelchair user left to wait 2 hours for a taxi until m...
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Cloisters column part one – ‘To pee or not to pee….? Toilets and Gender Identity’

Cloisters column part one – ‘To pee or not to pee….? Toilets and Gender Identity’
Cloisters: Equality and Human Rights in Practice This is part one of a two-part series on trans rights from leading equality and human rights barristers at Cloisters . Part two will explore gender identity and children.   It has been an important couple of years for trans rights. Going to the toilet is something most of us do without a se...
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Robin Allen QC and Rachel Crasnow QC to speak at the EOR-TUC conference in London and Equality Law Training in Scotland

Robin Allen QC and Rachel Crasnow QC to speak at the EOR-TUC conference in London and Equality Law Training in Scotland
Cloisters is delighted to announce that our leading discrimination law experts Robin Allen QC and Rachel Crasnow QC will be speaking at the Equal Opportunities Review and The Trades Union Congress (EOR-TUC) Annual Conference to be held in London on 20 th January 2017. Additionally, Robin and Rachel will also speak at the Equality Law Training ...
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Deposit Orders: Not to be used as a “strike out through the back door”

Deposit Orders: Not to be used as a “strike out through the back door”
Chris Milsom succeeds before the EAT in Hemdan v Ishmail & Ors in an important case about the appropriate amount of a deposit order against someone who has very low means to pay. Navid Pourghazi discusses the case .   The facts The Claimant, who was a victim of trafficking, claimed that she had been employed in circumstances that amounted ...
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Immigration Act 2016—language requirements for public sector workers

Immigration Act 2016—language requirements for public sector workers
Immigration analysis: What will the Immigration Act 2016 (IA 2016) mean in practice? Akua Reindorf, a barrister at Cloisters Chambers, considers the key provisions relating to language requirements for public sector workers. What are the main provisions relating to the English language requirement? The English and Welsh language requirement contain...
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The Immigration Act and the “Fluency Duty” for Public Sector Workers: Speaking in Tongues?

The Immigration Act and the “Fluency Duty” for Public Sector Workers: Speaking in Tongues?
What steps are employers expected to take to comply with the Public Sector English Language Requirement? And how do they avoid discrimination challenges in the process? In its 2015 manifesto the present Government pledged the safe and high quality delivery of public services by ensuring that they are provided to an appropriate standard of fluency i...
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Cloisters beats Littleton Chambers in the EAT rankings

Cloisters beats Littleton Chambers in the EAT rankings
Today, The Lawyer announces that Cloisters ranks top in the EAT rankings. Cloisters made 61 appearances in total whilst Littleton Chambers made 59 and Old Square Chamber made 50. Overall, all three chambers accounted for 28 per cent of all chambers' appearances. The remaining chambers such as Outer Temple Chamber made 38 appearances, 11 King’s Benc...
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BBC Look East interviews Sarah Fraser Butlin on the impending industrial strikes taking place this week

BBC Look East interviews Sarah Fraser Butlin on the impending industrial strikes taking place this week
On the 19 December, Look East interviewed Sarah Fraser Butlin on the industrial action that will take place this week. The strike will affect post offices and airports nationwide with baggage handlers and ground staff striking this weekend. “For employers it is hugely disruptive. It has a massive impact on businesses, but what we can’t forget is th...
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Written submission to House of Commons Business, Energy and Industrial Strategy Committee inquiry

Written evidence from Caspar Glyn QC, Anna Beale and Nathaniel Caiden   Authors This submission has been prepared by Leading Employment silk, Caspar Glyn QC [1] , and Leading Employment Juniors Anna Beale [2] and Nathaniel Caiden [3] . Our conclusions to the questions posed follow: and then our reasons. Conclusion Question 1 Those who provide ...
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Schona Jolly's 'Why the Daily Mail is wrong about the judiciary' story ranks Top 5 in The Lawyer's Top 20 stories of 2016

Schona Jolly's 'Why the Daily Mail is wrong about the judiciary' story ranks Top 5 in The Lawyer's Top 20 stories of 2016
It is a sign of a healthy and functioning democracy that the exercise of governmental power can be challenged properly through the courts. Contrary to the screaming headlines in some British newspapers today, yesterday’s High Court decision did not thwart the will of 17 million Brexit voters. The High Court did not decide the EU referendum “did not...
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Important Public Services: the Regulations have arrived

Important Public Services: the Regulations have arrived
This week the Government published a series of draft Regulations defining what “important public services” (IPS) are for the purposes of the Trade Union Act 2016 ( TUA 2016 ). The Act itself has been highly controversial and while it has Royal Assent, it has not yet come into force. When it does come into effect, there will be a requirement that 50...
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Same-sex marriage within the Church of England

Same-sex marriage within the Church of England
Nathan Roberts considers Pemberton v Bishop of Southwell and Nottingham , concerning a priest who was denied a licence to work in the NHS by the Church of England because he had married someone of the same sex. The case The Church of England’s opposition to same-sex marriage is a well-known if fraught matter. The Claimant is an ordained priest in t...
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Cloisters column: ‘The age of Trump and “Brexit”: is the balance between gay rights and religious freedom changing?’

Cloisters column: ‘The age of Trump and “Brexit”: is the balance between gay rights and religious freedom changing?’
Cloisters: Equality and Human Rights in Practice The age of Trump and “Brexit”: is the balance between gay rights and religious freedom changing? How far should the right to freedom of religion and belief be protected when it conflicts with the rights of other protected groups? This is a fundamental question which has been the subject of polarised ...
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The gap is still opaque: the final draft of the Gender Pay Gap Regulations for the Private sector

The gap is still opaque:  the final draft of the Gender Pay Gap Regulations for the Private sector
Provision for equal pay audits was introduced in s. 78 of the Equality Act 2010 (“EqA”) but that section was not enabled and lay dormant until a campaign to revive it several years later. The Small Business, Enterprise and Employment Act 2015, s. 147 permitted for regulations to be made to implement s. 78 (although that section is not yet in force)...
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Robin Allen QC of Cloisters to give the prestigious Hamlyn Lectures in 2018

Robin Allen QC of Cloisters to give the prestigious Hamlyn Lectures in 2018
Robin Allen QC has been invited to give the prestigious Hamlyn Lectures in 2018.  The current 2017 series have been given by Dame Sian Ellis the Chief Justice of New Zealand , and the 2017 series will be given by Professor Andrew Burrows, Oxford Professor of the Law of England.  Robin is expected to lecture on the future development of eq...
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Neurological causation and Chester v Afshar principles considered: Crossman v St George’s Healthcare NHS Trust [ 2016] EWHC 2878 (QB)

Neurological causation and Chester v Afshar principles considered: Crossman v St George’s Healthcare NHS Trust  [ 2016] EWHC 2878 (QB)
Rodney Crossman was 64 years old when he underwent a cervical laminectomy and foraminotomy for severe neck restriction and numbness in his left arm, at St George’s Hospital, Tooting. In admitted breach of duty, the Trust had placed Mr Crossman on the waiting list for this surgery immediately after his first meeting with a consultant in February 201...
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Vicarious liability at Christmas: Work, the party, the after-party

Vicarious liability at Christmas:  Work, the party, the after-party
Adam Ohringer considers the latest case on vicarious liability in this blog. As preparations are made for Christmas 2016, the High Court is still cleaning-up from the 2011 party season. The case of Bellman v Northampton Recruitment Ltd [2016] EWHC 3104(QB) provides a useful illustration of the coverage and limits of the doctrine of vicarious liabil...
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Is gender segregation in education discriminatory?

Is gender segregation in education discriminatory?
Rachel Barrett and Chris Milsom discuss the recent case of Interim Executive Board of X School v Chief Inspector of Education, Children's Services and Skills [2016] EWHC 2813 (Admin) in this blog. A copy of the judgment is available here . Many of us might instinctively think that the answer to the opening question would be ‘yes’. After all, in 201...
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Cloisters fact sheet for #equalpayday

Cloisters fact sheet for #equalpayday
Cloisters has produced this fact sheet for #equalpayday to help employees understand whether they are being underpaid. On Equal Pay Day how can the law help eradicate your pay gap? Based on the mean salary for full time employees in the UK, today is the day on which women stop being paid for their work. The average female worker in the UK earns 13....
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Disability and homelessness: bringing home human rights

Disability and homelessness: bringing home human rights
Sally Robertson considers the decision of R (GS) v London Borough of Camden [2016] EWHC 1762 (Admin), 27 July 2016 in this blog. The Human Rights Act 1998 incorporated the European Convention on Human Rights (ECHR) into UK law from 2000. Sixteen years later the ECHR is under attack. Why? At first blush the reason is difficult to understand. After a...
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Employment Appeal Tribunal confirms that judges don't work for a living...

Employment Appeal Tribunal confirms that judges don't work for a living...
....they do, however, faithfully and diligently discharge their office and can be, of course, in an employment relationship. Blog by Caspar Glyn QC   Like a London Bus rather than an Uber one worker status case follows another with the EAT’s decision in Gilham v MoJ . Ms Gilham sought whistleblower protections in her role as a district judge. ...
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Uber drivers lead the way for revolution in the gig economy

Uber drivers lead the way for revolution in the gig economy
In this blog Sally Cowen considers the implications of the recent Tribunal decision on the status of Uber drivers. Uber drivers have been held by the Tribunal to be ‘workers’ under the definition in s.230(3)(b) of the Employment Rights Act 1996. Known as ‘limb (b) workers’ this entitles the drivers to a variety of rights in relation to their hours ...
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Discrimination compounds the pain in personal injury and clinical negligence claims

Discrimination compounds the pain in personal injury and clinical negligence claims
In this article, Sarah Fraser Butlin and Catriona Stirling consider discriminatory practices within the calculation of damages for personal injury and clinical negligence. Personal injury and clinical negligence lawyers do not tend to think about equality and diversity issues in their cases all that often. However there are several areas that are c...
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Asda, equal pay and the meaning of “establishments”

Asda, equal pay and the meaning of “establishments”
Daphne Romney QC considers the long awaited decision of the ET in Brierley v ASDA Stores: The ET sitting in Manchester has handed down judgment in the latest instalment of Brierley v ASDA Stores [1] the equal pay litigation between some 7,000 claimants, predominantly female, working in the Retail division of ASDA. They assert that they do work of e...
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Lock, take stock for the next few barrels….

Lock, take stock for the next few barrels….
Caspar Glyn QC analyses the recent Court of Appeal decision: Restricted to its own facts British Gas’ appeal has been unsurprisingly dismissed. However, the decision was a close one - in the words of the court it “wavered.” Questions as to the correct reference period and whether a banker’s bonus should be reflected in holiday pay were expressly re...
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Court of Appeal dismisses British Gas’ appeal in Lock

Court of Appeal dismisses British Gas’ appeal in Lock
The Court of Appeal handed down judgment today in the case of Lock and another v British Gas Trading Ltd [2016] EWCA Civ 983, upholding the EAT’s decision earlier this year that holiday pay must include results-based commission. The Court of Appeal affirmed the EAT’s finding that the employment tribunal had not erred in reading words into the Worki...
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Can Judicial Assessment help Claimants and Respondents in the Employment Tribunal?

Tom Gillie , Cloisters The President of the Employment Tribunals (England and Wales) has issued new guidance setting out a protocol for 'Judicial Assessment' of a claim and a response as part of Employment Tribunal proceedings. A copy of the guidance and protocol is available here:  https://www.judiciary.gov.uk/wp-content/uploads/2013/08/presi...
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Housing, Race and the Right to Rent post Brexit

Tom Gillie and Declan O'Dempsey  explain how private landlords can avoid harassment and indirect discrimination on grounds of race when applying their right to rent duties. Provided proper caution is used in relation to making Right to Rent checks, there is no reason why tenants from diverse backgrounds, including EU, EEA and EFTA nationals, s...
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Times are changing - Gender Pay Gap Regulations

Times are changing - Gender Pay Gap Regulations
Forty-six years since the Equal Pay Act 1970, the gender pay gap persists despite years of litigation. The impending regulations have come at an important time, says Daphne Romney QC who has written a full article on this in the October 2016 edition of Counsel. This can be accessed here .

Agency Employees, Unfair Dismissal and the Necessity of Communicating an Intention to Dismiss: the recent EAT judgment in Sandle v Adecco UK Ltd

Agency Employees, Unfair Dismissal and the Necessity of Communicating an Intention to Dismiss: the recent EAT judgment in Sandle v Adecco UK Ltd
Ed Williams and Caroline Musgrave appeared before the EAT in July 2016 to argue an important case for agency workers and those who bring or defend unfair dismissal claims in the context of agency employment. Navid Pourghazi discusses the Judgment.   Introduction The EAT’s decision in Sandle v Adecco UK Limited is a must-read for practitioners ...
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The Conseil d’État in France has recently overturned a ban on “burkinis”: Is French secularism now under attack?

The Conseil d’État in France has recently overturned a ban on “burkinis”: Is French secularism now under attack? Dee Masters , Cloisters This article argues that the recent decision of the Conseil d’État concerning the ban on “burkinis” will have very little impact on the interplay between secularism, religious freedom and the principle of non-disc...
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Prevent Duty Part 4: Practical operation of a “due regard” duty: lessons from the Equality Act 2010 for the application of the Prevent Duty by universities

Prevent Duty Part 4:  Practical operation of a “due regard” duty:  lessons from the Equality Act 2010 for the application of the Prevent Duty by universities
In his fourth article on Prevent Duty Declan O'Dempsey  looks at the similarities between the Prevent Duty to have due regard and consider what the practical application of that duty to have due regard will look like in the light of the existing body of case law on the analogous s 149 of the Equality Act 2010. The duty under section 149 Equali...
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Race Discrimination and Housing in post-Brexit Britain

Race Discrimination and Housing in post-Brexit Britain
In this article  Catherine Casserley and Tom Gillie  consider race discrimination in housing and, in particular, the obligations that landlords have not to discriminate themselves and to take action when their tenants are experiencing discrimination and harassment by other tenants. The reported racist incidents have surged since the ...
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Kratzer v RAV AG: Access to Employment versus access to compensation

Kratzer v RAV AG: Access to Employment versus access to compensation
By Chris Milsom Those with long memories will recall a Mr John Berry (alias) who was said to have made ET litigation a veritable cottage industry. Mr Berry’s modus operandi was to locate advertisements (principally placed by recruitment agencies) for roles across the UK which contained terminology allegedly targeting younger people such as “school ...
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Age Discrimination in the light of CJEU case law

Age Discrimination in the light of
CJEU case law
Declan O’Dempsey provides an up-to-date overview of the Court of Justice’s evolving body of case law on age discrimination in the employment field in the latest issue of the European Equality Law Review .  This publication covers the European Economic Area and European Free Trade Association (EFTA). It provides an overview of the latest l...
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Bitter taste for Byron staff – how to handle the immigration obligations

Bitter taste for Byron staff – how to handle the immigration obligations
By Sally Cowen Last week Byron, the upmarket burger chain called their employees into a meeting, which was cast as a meeting to teach them how to cook burgers. Immigration officers turned up to this (allegedly) stooge meeting (the employees were not there to learn how to cook burgers, but apparently to be investigated by the Immigration Service). I...
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Prevent Duty Part 3: British Values, Human Rights and handling “due regard” duty in practice

Prevent Duty Part 3: British Values, Human Rights and handling “due regard” duty in practice
In this third article Declan O'Dempsey looks at the concept of “British Values” in the context of the Prevent Duty.  It appears in the definition of “extremism” in the Guidance.  British values are mentioned in the Guidance.  However only examples are given of what constitute British values. In a post Brexit discussion these values h...
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The Prevent Duty Part 2: Government Guidance and Practical Guidance

The Prevent Duty Part 2: Government Guidance and Practical Guidance
By Declan O’Dempsey In this article I deal with the government issued guidance on the Prevent Duty under section 21 of the Counter-Terrorism and Security Act 2015 as it applies to universities. What the guidance says Section 29 of the 2015 Act permits the Minister to issue guidance on the Prevent Duty.  It states that authorities must have reg...
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Administrative Court Judicial Review Guide 2016: Help for persons representing themselves (“litigants in person”)?

Administrative Court Judicial Review Guide 2016:
Help for persons representing themselves (“litigants in person”)?
By Declan O' Dempsey In this blog I consider the Administrative Court’s Judicial Review Guide 2016 (“the Guide”).   It is undoubtedly a massive help for solicitors, barristers and other legal advisers who are dealing with judicial review claims even on an infrequent basis.  How much help can it be for a litigant in person? The best w...
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The legal consequences of illegality: The Supreme Court’s judgment in Patel v Mirza

The legal consequences of illegality: The Supreme Court’s judgment in Patel v Mirza
By  Daphne Romney QC When the Court of Appeal heard this claim, Gloster LJ began her judgment with what Lord Toulson in the Supreme Court called a “ cri de coeur ”. “As any hapless law student attempting to grapple with the concept of illegality knows, it is almost impossible to ascertain or articulate principled rules from the authorities rel...
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Part 1: the Prevent Duty for Universities

Part 1:  the Prevent Duty for Universities
By Declan O’Dempsey [1] “Broad terms such as “extremist” or “radical” are not capable of being defined with sufficient precision to enable universities to know with sufficient certainty whether they risk being found to be in breach of the new duty and therefore subject to direction by the Secretary of State and, ultimately, a mandatory court order ...
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The Simmons v Castle debate continues

The Simmons v Castle debate continues
Sarah Fraser Butlin considers the most recent EAT judgment on the issue in Olayemi v Athena Medical Centre. It was HHJ Richardson’s turn to consider whether the 10% uplift on general damages applied to awards for injury to feelings.  His answer was yes. The Court of Appeal in Simmons v Castle [2012] EWCA Civ 1039 had declared that: “…with effe...
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Tricky quantum case that grapples with PI claims involving multiple tortfeasers and disputes between experts

Tricky quantum case that grapples with PI claims involving multiple tortfeasers and disputes between experts
William Latimer-Sayer QC considers the case of XP V Compensa Towarzystwo SA v Przeyslaw Bejger [2016] EWHC 1728 (QB) in which Whipple J had to grapple with a number of tricky quantum issues.  The Claimant had been injured in two separate road traffic accidents.  The first accident occurred in Poland on 27 April 2011.  The second acci...
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A part of inclusion? Disabled people and the right to a fair hearing

A part of inclusion? Disabled people and the right to a fair hearing
John Horan considers two recent cases that highlighted particular difficulties that disabled people face in obtaining a fair hearing before the courts.  Both cases ( Rackham v NHS Professionals Ltd and  Galo v Bombardier Aerospace UK )   provide a common-sense framework of considerations which a court or tribunal must bear in mi...
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ELA briefing features innovative articles by Cloisters

ELA briefing features innovative articles by Cloisters
Cloisters is consistently at the cutting edge of legal analysis.  The July edition of ELA briefing contains two articles by barristers at Cloisters.   Schona Jolly and Nathan Roberts produced an analysis of C-157/15 Achbita v G4S Secure Solutions NV entitled, “Secular workplaces v religious freedoms” which argues that the law is cham...
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Sheryn Omeri considers the Chilcot Report and its implications for Blair and victims of war in Iraq

Sheryn Omeri considers the Chilcot Report and its implications for Blair and victims of war in Iraq
At 11am on 6 July 2016, the report of the 7-year-long Iraq Inquiry was released. The Inquiry Committee, with Sir John Chilcot at its helm, had been appointed to consider two specific questions namely: 1. whether it was right and necessary to invade Iraq in March 2003; 2. whether the UK could and should have been better prepared for what followed. I...
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Government responds to Women & Equalities Select Committee Report on Transgender Equality

Government responds to Women & Equalities Select Committee Report on Transgender Equality
The House of Commons’ Women and Equalities Select Committee was appointed on 3 June 2015.  The Committee announced its first inquiry shortly thereafter into transgender equality, looking at a range of outstanding issues for the trans community and considering how they could most effectively be addressed.  Six Ministers gave evidence to th...
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Brexit and Mrs Webb: Return of the sick man versus pregnant woman?

Brexit and Mrs Webb: Return of the sick man versus pregnant woman?
By Rachel Crasnow QC The EU widened the scope of protection against gender discrimination considerably. Advancements have included protection relating to equal pay, paid time off for antenatal appointments, pregnancy discrimination, parental leave and urgent time off for family reasons, paid maternity leave and the right to equal treatment for part...
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CJEU confirms that certain retirement schemes can discriminate on the grounds of age

CJEU confirms that certain retirement schemes can discriminate on the grounds of age
Dee Masters considers the CJEU’s judgment in C-159/15 Lesar v Telekom Austria AG published on 16 June 2016.  It confirms that employer-run retirement schemes, which completely replace rather than supplement any government benefits related to retirement, can freely discriminate on the grounds of age in relation to entry and exit. Factual backgr...
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Samira Achbita v G4S Secure Solutions NV: a dangerous new concept of direct discrimination

Samira Achbita v G4S Secure Solutions NV: a dangerous new concept of direct discrimination
Declan O’Dempsey considers the opinion of the Advocate General in Case C-157/15 Samira Achbita and Centrum voor gelijkheid van kansen en voor racismebestrijding v G4S Secure Solutions NV . Overview Principles of law should be designed from behind a “veil of ignorance”, not standing on the ramparts of Fortress Europe.  The Advocate General (AG)...
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Sheryn Omeri considers first ever guilty plea at the International Criminal Court

Sheryn Omeri considers first ever guilty plea at the International Criminal Court
In this month’s issue of Counsel magazine, Cloisters’ Sheryn Omeri writes about the first ever guilty plea to be offered up by a Defendant to proceedings before the International Criminal Court (ICC) in the case of Prosecutor v Al Faqi Al Mahdi, one of the cases on which Sheryn worked while based in the Office of the Prosecutor of the ICC. Sheryn c...
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Keeping up to date with inquest law in a clinical context: can a medical patient be treated as “detained by the state”?

Keeping up to date with inquest law in a clinical context: can a medical patient be treated as “detained by the state”?
By Patricia Hitchcock QC Those regularly instructed to represent families at inquests will no doubt already be familiar with the valuable resource that is the Chief Coroner and his website, as well as the extremely useful sites of membership organizations like Inquest and AvMA.  If it’s been a little while since your last instructions, and lac...
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Challenging stereotypical assumptions: age discrimination and student loans

Challenging stereotypical assumptions: age discrimination and student loans
by Dee Masters The Court of Session has recently handed down a decision which highlights the importance of public bodies reassessing assumptions concerning older people so as to ensure that they are not acting in a way which is discriminatory. In Scotland, student loans, which cover living expenses during periods of study, are only available to peo...
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Employment status update

Employment status update
by Nathan Roberts Despite streams of case law on the status of workers and employees, new issues and principles keep emerging. On the horizon is litigation between various app-based companies and their users as to worker status. Litigation has also recently been brought by the Independent Workers Union of Great Britain on behalf of cycle couriers s...
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The EU Charter of Fundamental Rights Back in the Spotlight

The EU Charter of Fundamental Rights Back in the Spotlight
The EU Charter of Fundamental Rights Back in the Spotlight By Schona Jolly The EU Charter of Fundamental Rights, yet again, finds itself amidst controversy in Britain as it gets tossed into the domestic Leave/Remain referendum debate. Does it impinge upon national sovereignty? Did Britain really sign up to this extension of rights? Does the Charter...
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Human Fertilisation and Embryology Act Incompatible with Convention Rights

Human Fertilisation and Embryology Act Incompatible with Convention Rights
Catriona Stirling considers the case of Z (a child) (No.2) [2016] EWHC 1191 (Fam) , in which Sir James Munby, President of the Family Division, has made a declaration under s.4 of the Human Rights Act 1998 (HRA) that s. 54(1) of the Human Fertilisation and Embryology Act 2008 (HFEA) is incompatible with Article 8 together with Article 14 of the Eur...
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Whiplash: George Osborne’s Modest Proposal

Whiplash: George Osborne’s Modest Proposal
By Martyn McLeish In his 2015 autumn statement the Chancellor of the Exchequer, the Rt. Hon George Osborne MP, announced that to make it “ harder for people to claim compensation for exaggerated or fraudulent whiplash claims, the government is ending the right to cash compensation ”. [1] The proposal will remove the right of individuals to claim ‘g...
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Reasonable adjustments: exercising the right to be heard

Reasonable adjustments: exercising the right to be heard
John Horan considers a decision concerning the United Nations Convention on the Rights of Persons with Disabilities and the Equal treatment bench book, and the lessons that can be learned from it by the lawyers of disabled people seeking to use tribunals and courts in this country. In Rackham v NHS Professionals Limited UKEAT/0110/15 , 16 December ...
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Internal appeals and the EDT: the statutory regime reigns supreme

Internal appeals and the EDT: the statutory regime reigns supreme
Tamar Burton considers the impact of an internal appeal decision to change a summary dismissal to a dismissal with notice on the effective date of termination (“EDT”). This factual scenario was considered by the Court of Appeal in Rabess v London Fire and Emergency Planning Authority, a case concerning the interplay between the common law principle...
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How is ‘Employment’ defined under the Equality Act 2010?

How is ‘Employment’ defined under the Equality Act 2010?
What is employment under the Equality Act 2010? Adam Ohringer considers the recent judgment of the Court of Appeal in Secretary of State for Justice v Windle [2016] EWCA civ 459   It always strikes me as amusing that employment lawyers have such difficulty defining what employment actually is.  Maybe it is like asking a biologist: ‘what i...
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Incapacity and Illegality in the Personal Injury / Clinical Negligence context

Incapacity and Illegality in the Personal Injury / Clinical Negligence context
By Nathaniel Caiden Introduction Those dealing with personal injury and clinical negligence cases will often have dealt with claimants who lack capacity and the resulting costs in light of that lack of capacity.  The usual occurrence will be one where it was plainly the negligence or breach of statutory duty that caused this loss of capacity. ...
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Caroline Musgrave discusses the application of QOCS to Motor Insurance Bureau claims

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 untraceab...
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EU anti-discrimination law: ten "easy" steps to disapplying inconsistent national provisions

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-...
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The Bar and shared parental leave

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 ...
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Brexit – what will happen to the UK’s environmental policy?

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 t...
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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

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 (per...
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Extension of Right to Shared Parental Leave….

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, ...
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School attendance awards: a poor lesson in tolerance to disabilities

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 metho...
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No childcare vouchers during maternity leave: upping the pressure during early months

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 n...
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Limits to the concept of ‘Associative Discrimination’

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 ...
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Being deterred from membership of an independent trade union: Court of Appeal, again, considers the case of Mr Bone

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.  T...
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Equality, discrimination and the marginalised: The Immigration Bill 2015-16 and employment rights for migrants

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 ...
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Cox v MoJ: Vicarious Liability Extension in Christian Brothers Case Approved by Supreme Court

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 J...
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The Court of Appeal in Griffiths: Malcolm comparison 'inapt' for reasonable adjustment cases

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 – mus...
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Mohamud: The Plates of Vicarious Liability Shift Again

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 J...
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Sheryn Omeri on the destruction of cultural property and the first International Criminal Court prosecution

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 ...
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Future Loss in Fatal Claims: Logic Restored

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...
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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 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 ...
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Closing the Gap: Will the gender pay gap information Regulations bring about equality?

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 ...
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Supreme Court gives guidance on the admissibility and use of expert evidence

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 Cordi...
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Age discrimination and the taxation of pension income

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 challeng...
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Settling Injury to Feelings: A Taxing Time

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 s...
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Material Contribution – the next chapter

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 ...
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The European Accessibility Act 2015

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

Bar on Straight Civil Partnerships is Lawful

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. Bu...
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Testing the limits of the Equality Act 2010

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 ...
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CMOs Revisited: Case Management Orders in the Employment Tribunals

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...
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Early conciliation: the tide is turning towards a liberal interpretation

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.   Overvie...
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Spying on Employees: Has the European Court of Human Rights really given carte blanche to employers?

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 give...
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Copy to Self @ home – BE CAREFUL!

Copy to Self @ home – BE CAREFUL!
Sally Cowen  considers the recent High Court Judgment in Farnan v Sunderland Association Football Club Ltd [20 15] EWHC 3759 (QB). We’ve all advised clients to make sure that they accumulate evidence of the breach of trust and confidence they allege. Following  Brandeaux Advisers v Chadwick [2010] All ER 235 and Tokio Marine Kiln Insuranc...
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Proving discrimination: The shifting burden of proof and access to evidence

Proving discrimination: The shifting burden of proof and access to evidence
Anna Beale was invited to speak at the Academy of European Law in Trier, Germany, on the shifting burden of proof and access to evidence in European discrimination law. Her podcast examines the way in which EU law has sought to alleviate the difficulties faced by claimants in discrimination claims – see the link below: http://www.era-comm.eu/anti-d...
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Beckford: Clarity as to 10% uplift on general damages in the Tribunal?

Beckford: Clarity as to 10% uplift on general damages in the Tribunal?
Olivia-Faith Dobbie  comments on why the Simmons v Castle saga continues in Beckford . Introduction In Simmons v Castle  [2012] EWCA Civ 1039, the Court of Appeal (CA) declared that: “…with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inc...
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Indirect discrimination: when disparate impact is not enough

Indirect discrimination: when disparate impact is not enough
When disparate impact is not enough:  Anna Beale considers the recent judgment of the Court of Appeal in Naeem v Secretary of State for Justice : Those practitioners who have had no involvement in the mass equal pay litigation of the last 20 years may have remained blissfully unaware of the decisions of the Court of Appeal in Armstrong v Newca...
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Long-awaited clear reasoning on comparators

Long-awaited clear reasoning on comparators
Rachel Crasnow QC and  Tamar Burton consider the Court of Appeal’s judgment in Griffiths v Secretary of State for Work and Pensions . The judgment of Elias LJ handed down on 10 December 2015 has confirmed that the duty to make reasonable adjustments may well be engaged in the application of attendance management policies to disabled employees....
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Remedy in Tirkey v Chandhok

Remedy in Tirkey v Chandhok
By Tamar Burton The liability judgment in Tirkey v Chandhok  caught the attention of many legal commentators after the Employment Tribunal awarded Mrs Tirkey £183,773.53 for her National Minimum Wages claim alone. [Click  here  for Cloisters' blog on liability judgment.]  On 4 December 2015 the Employment Tribunal handed down it...
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Why the Government is failing disabled people on access to legal justice

Why the Government is failing disabled people on access to legal justice
Cloisters’ barrister John Horan discusses why the Government and the courts need to properly apply the UN Convention on the Rights of Persons with Disabilities so that effective measures are put in place to facilitate correct access to justice for disabled people. Currently many disabled people feel that actual access to legal justice and equal rec...
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Goods, facilities and services: Age discrimination problems arise in unexpected places

Goods, facilities and services: Age discrimination problems arise in unexpected places
By Dee Masters and Siân McKinley Overview There has been a ban on age discrimination in goods, facilities and services in Great Britain since 1 October 2012 but very little litigation or publicity.  However, age discrimination problems can arise in some unexpected but common areas.  It seems likely that service providers have been lulled ...
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Qualified but cannot work here? General Teaching Council for Scotland faces recruiting challenge

Qualified but cannot work here? General Teaching Council for Scotland faces recruiting challenge
By Declan O'Dempsey The BBC says former teachers with English teaching qualifications, living in the local military population could be recruited by Moray Council to alleviate staff shortages.  Currently they cannot work because they qualified outside Scotland. The General Teaching Council for Scotland (GTCS) is considering approval of Moray’s...
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Quantum Update: A review of recent case law and hot topics

Quantum Update: A review of recent case law and hot topics
William Latimer-Sayer presented a quantum update seminar at the APIL Damages Special Interest Group meeting at the Bloomsbury Hotel in London on 3 November 2015.  The lecture considered a number of significant quantum cases that have appeared in the courts during 2015 and the practical application of the same.  He spoke together with Anth...
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Reaney v North Staffordshire: Egg-shell skull rule does not apply where the shell is already broken

Reaney v North Staffordshire: Egg-shell skull rule does not apply where the shell is already broken
By Catriona Stirling The Court of Appeal has handed down its judgment in the case of Reaney v University Hospital of North Staffordshire NHS Trust & Anr [2015] EWCA Civ 1119.   The key issue in this case was how causation and quantum should be determined where a pre-existing injury is worsened by a Defendant’s negligence. Background Mrs Re...
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Database rights: ownership, breaches and remedies

Database rights: ownership, breaches and remedies
There is, at common law, no property in information ( Oxford v Moss [1978] 68 Cr App Rep 183).  An employer may want to use database rights where traditional restrictive covenant approaches to protecting a business interest will not succeed.  In this article Declan O’Dempsey covers some of the ways in which an employer can use the Databas...
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What does 'qualifying disclosure' mean in the context of whistleblowing legislation?

What does 'qualifying disclosure' mean in the context of whistleblowing legislation?
In this month’s ELA briefing, Sheryn Omeri (together with James Laddie QC of Matrix) considers the meaning of “qualifying disclosure” in the context of whistleblowing legislation. Section 43B of the Employment Rights Act defines a qualifying disclosure as a disclosure of information which, in the reasonable belief of the worker making the disclosur...
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Proportionality and Data Protection

Proportionality and Data Protection
Declan O'Dempsey and Catherine Richmond assess the amount of effort required to respond to a data subject access request: the Information Commissioner goes one way but the courts go another. The Information Commissioner’s Office has never liked the suggestion of the High Court in Ezsias v Welsh Ministers [2007] EWHC B15 (QB) (23 November 2007)...
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Are sleep-in workers entitled to the national minimum wage?

Are sleep-in workers entitled to the national minimum wage?
Anna Beale reflects on the recent EAT Judgment concerning national minimum wage for “sleep-in” workers doing “salaried hours work” in a residential care home: Shannon v Rampersad & Rampersad t/a Clifton House Residential Home The question of whether workers who “sleep-in” overnight at their workplace are entitled to the minimum wage for some or...
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EAD Solicitors and Ors v Abrams: Equality for all “Persons?”

EAD Solicitors and Ors v Abrams: Equality for all “Persons?”
Chris Milsom considers the recent EAT Judgment which decides that a limited company can sue for discrimination under the Equality Act 2010 below: In this month’s Employment Law Association Briefing ( Blurred Lines? ‘Association’, ‘Direct’ and ‘Indirect’ following CHEZ ) I addressed the controversial decision on associative discrimination of CHEZ Ra...
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How far can charities engage in political campaigning?

How far can charities engage in political campaigning?
Declan O’Dempsey has published a podcast about how far charities can engage in political campaigning.  Here he: Considers how the restrictions in charity law on political activity affect in particular charities concerned with human rights and/or equality.   Covers the guidance issued by the Electoral Commission and by the Charity Commissi...
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Associative Victimisation: Thompson v London Central Bus Company, EAT

Associative Victimisation: Thompson v London Central Bus Company, EAT
By Daniel Dyal In Thompson v London Central Bus Company [2015] UKEAT 0108_15_2007  Mr Thompson claimed that he was victimised because of a protected act. The twist was that he did not do the protected act himself. The protected act was done by another employee with whom, Mr Thompson claimed, management associated him. Mr Thompson was a member ...
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Jurisdiction battles: Employment rules win

Jurisdiction battles: Employment rules win
Jacques Algazy QC , an expert at Cloisters on international and territorial jurisdiction and conflicts of laws, comments on the recent judgment of the European Court of Justice below.   In Ho lterman Ferho Exploitatie BV and others v Spies von Bullesheim C-47/14 , the CJEU definitively ruled in favour of the jurisdiction provisions applicable ...
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Does your daily commute count as working time?

Does your daily commute count as working time?
By Jason Galbraith-Marten QC In Whittlestone v BJP Home Support Limited [2014] ICR 275 the EAT held that for those without a permanent place of work, time spent travelling between assignments counted as ‘time work’ for the purposes of the National Minimum Wage Regulations 1999. In Federación de Servicios Privados del sindicato Comisiones obreras (C...
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Employment Tribunal fees – a new Scottish dimension

Employment Tribunal fees – a new Scottish dimension
By Brian Napier QC  (Scotland) and Jonathan Mitchell QC (Scotland) The recent rejection by the Court of Appeal to Unison’s challenge to the fee-charging regime that is now part of our employment tribunal system comes as a set-back to all who see fee-charging as a denial of (access to) justice.  This week, however, there is good news for s...
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Greek Judge strikes a blow for parental leave equality

Greek Judge strikes a blow for parental leave equality
Case C-222/14 Konstantinos Maïstrellis v Ypourgos Dikaiosynis, Diafaneias kai Anthropinon Dikaiomaton – 16 July 2015 ; blog by  Jacques Algazy QC and Rachel Crasnow QC The Claimant, a male Greek Judge holding the status of a Civil servant, challenged the Greek legislation that provides that a male civil servant is not entitled to paid parenta...
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Is the Government’s recent Trade Union bill compliant with the European Convention on Human Rights?

Is the Government’s recent Trade Union bill compliant with the European Convention on Human Rights?
By Ed Williams and Sarah Fraser Butlin In what has been billed as the biggest crackdown on trade union rights for 30 years, the Conservative government have published a draft Trade Union Bill along with three separate consultation documents on ballot thresholds in important public services, hiring agency staff during industrial action and tackling ...
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The recast Brussels regulation: to sue or not to be sued

The recast Brussels regulation:  to sue or not to be sued
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 ...
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Memory and clinical negligence trials: Tressider v Royal Cornwall Hospitals NHS Trust

Memory and clinical negligence trials: Tressider v Royal Cornwall Hospitals NHS Trust
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 Cornwa...
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The CJEU Judgment in CHEZ: Indirect discrimination by association

The CJEU Judgment in CHEZ: Indirect discrimination by association
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 B...
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Dealing with wide-ranging discrimination claims: using a staged approach

Dealing with wide-ranging discrimination claims: using a staged approach
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 clai...
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US Supreme Court legalises same-sex marriage and other developments

US Supreme Court legalises same-sex marriage and other developments
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, wit...
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Voluntary overtime: the beginning of the end of the ray of light

Voluntary overtime: the beginning of the end of the ray of light
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 Northe...
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Peripatetic workers get a lift (home)

Peripatetic workers get a lift (home)
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 ...
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Using the Protection from Harassment Act in the employment field

Using the Protection from Harassment Act in the employment field
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 b...
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The Medical Innovation Bill rears its head once more

The Medical Innovation Bill rears its head once more
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 alter...
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PIP disability benefits delay unlawful

PIP disability benefits delay unlawful
Sally Robertson considers the ruling in  R (Ms C & Mr W) v Secretary of State for Work and Pensions [2015] 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 in...
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Lee v Ashers Bakery: Cake Now or Cake Later?

Lee v Ashers Bakery: Cake Now or Cake Later?
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 j...
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