July Online Service Updates

What’s new in our plethora of law online services? Steve Savory summarises the highlights.

Two major releases for updating services included in Employment Law went live this month.

  • First, Discrimination Law, with an author team headed by Andrew Burns and Pauline Hughes. Included in the updated material is discussion of the Vento/Da’Bell bands following the De Souza and Beckford cases:

‘The Vento guidelines have now been updated in Da’Bell v NSPCC, in which the EAT revised the categories in line with the Retail Price Index: the lowest band is now up to £6,000, the middle band from £6,000 to £18,000 and the top band from £18,000 to £30,000.

There is at present uncertainty as to whether the Vento / Da’Bell bands should be increased by a further 10% in line with the decision of the Court of Appeal in Simmons v Castle that general damages in most tort cases should be increased to reflect the fact that success fees and after the event insurance premiums were no longer recoverable. Different EAT judges have reached different conclusions, most recently HHJ Serota QC in De Souza v Vinci Construction UK Ltd (uplift should not apply) and Langstaff J in Beckford v London Borough of Southwark (uplift should apply). The Court of Appeal in De Souza has now confirmed that the Simmons v Castle uplift does apply in the employment tribunal. The Court of Appeal also commented that it would be sensible for there to be published guidance from the Presidents of the Employment Tribunals or the EAT revising the Vento bands.’

https://www.bloomsburyprofessionalonline.com/view/discrimination_law/DISL-S0797.xml

  • Termination of Employment, another updating service in Employment Law, was also updated in the month. Included in this release, in the section on potential breaches of the duty of trust and confidence, is analysis of the Braganza case and the more recent IBM case where the ‘rationality test’ was considered

“Whilst the courts have held there is no implied duty on an employer to act reasonably (White v Reflecting Roadstuds Limited) the employer must not act in an irrational or perverse manner when exercising a discretion under an employment contract (see, for example, Commerzbank AG v Keene, a case which concerned an employer’s exercise of discretion in relation to a contractual bonus scheme).

In the recent case of Braganza v BP Shipping Ltd, the Supreme Court held that when considering the employer’s exercise of discretion, it was necessary to consider the way in which the employer had exercised its discretion as well as the reasonableness of the decision. Therefore, the court should look at not just whether the employer’s conclusion was perverse, but also consider how the evidence in reaching that decision was evaluated. The majority of the Supreme Court found that because of the nature of an employment relationship (eg imbalance of power) and the duty of mutual trust and confidence, the courts may be more willing to subject employers’ decisions to closer scrutiny than in commercial cases. Further, employers would be expected to inform themselves of the principles relevant to the decisions they are making even though employment law is complicated and demanding.

This principle was extended in the recent case of IBM United Kingdom Holdings Limited v Dalgleish concerning changes to a pension scheme. The Court of Appeal held, taking into account the decision in Braganza, that a rationality approach equivalent to the Wednesbury test should be adopted in cases involving the exercise of an employer’s express or implied discretionary powers, in order to decide whether the employer had acted in breach of the implied term of mutual trust and confidence. This rationality test requires a court to ask firstly whether only relevant matters (and no irrelevant matters) had been taken into account by the decision-maker and secondly whether the decision was such that no reasonable decision-maker could have made it. In order to decide whether an employer’s decision satisfies the rationality test, the court may need to know more about the employer’s reasons and the decision-making process to assess whether all relevant matters, and no irrelevant matters, were taken into account. However, the Court of Appeal noted that:

‘Other cases very different from those of contractual discretion include conduct which is aimed at a given employee or a group of employees, of the kind that can lead to a claim of constructive dismissal, such as harassment or other objectionable behaviour. For such cases the Wednesbury test is hardly likely to be directly relevant.’

The rationality test is therefore limited to situations where the employer exercises a discretionary provided for under a contract.”

https://www.bloomsburyprofessionalonline.com/view/terminate_employment/TTOE-S-00121.xml

  • An interesting case on the grounds for de-anonymising a judgment was reported in Family Court Reports during the month. This was the case Bloom v Bloom, [2018] 2 FCR 359:

“The gravity of the husband’s conduct was a factor in favour of un-anonymised publication, as was the fact that these frauds had affected innocent third parties, and were not just a matter between the parties, or between the husband and HMRC. Whilst this husband’s behaviour was not at the very extreme end of the scale identified in Y v Z, it was certainly on a par with ‘falsifying accounts’ and ‘committing defalcations with his client’s money’. The husband’s conduct had been both serious and damaging: the frauds had been calculated, grave, and repeated. He had not exhibited any apparent remorse and he had not expressed (or seemed to experience) any element of regret for systematically defrauding people for some years. It was plainly in the public interest that all potential future investors, business associates, pension fund trustees, company shareholders, potential partners and other members of the public were protected from his schemes insofar as possible.”

https://www.bloomsburyprofessionalonline.com/view/family_court_reports/ID2018_2_FCR_0359.xml

  • Staying with family law, in the June issue of Bloomsbury Family Law briefing, David Burrows provides a detailed article on time for appeal and clarification of a judge’s reasons, which concludes as follows:

“So what is to be done where a judge delays clarification of his or her reasons for a decision? If the decision has been made but no reasons, or clarification of any reasons, has been provided then under the rule, as explained by Sayers Clarke, time is running under r 52.12(2)(b). Best practice must surely be:

‘Draft a notice of appeal – albeit in outline and from the advocate’s note which has been made of any judgment thus far;

If the notice of appeal criticises the judge for lack of reasons, file application for permission to appeal with the judge (r 52.3(2)(a)) (English v Emery Reimbold & Strick Ltd), from whom, in the first instance, permission should be requested;

If in doubt as to filing notice of appeal in 21 days, ask the judge (r 52.12(2)(a)) to extend time to 21 days from (eg his/her reply on clarification)

If judge delays in reply, file a notice of appeal 21 days from date of decision of court below (r 52.12(2)(b)); again even if grounds are in draft. The Court of Appeal can be asked (i) to amend grounds and (ii) to extend time for filing documents and eg skeleton argument till clarification, or save as further directed by the court.’

https://www.bloomsburyprofessionalonline.com/view/bflb/bflb-201806-2.xml

  • In the Journal of Professional Negligence, Sir Rupert Jackson contributes an article written shortly before his retirement in which he considers whether he “has achieved anything of lasting value” during his time on the bench.

“are litigation costs still too high? Yes, they are. Then what on earth have I achieved? Many of the causes of excessive costs have been eliminated and significant improvements have been made in the litigation process. As things stood 10 years ago, someone had to do something about costs (especially the absurd CFA/ATE regime). Whoever received that poisoned chalice was bound to make themselves extremely unpopular – unless they ducked every controversial issue. Despite all the criticisms which I have received over the last 10 years, the blunt and inescapable fact is that the Jackson reforms have achieved significant reductions in the costs of litigation. As discussed above, most of the reforms have worked well, but a few have not. Those reforms which work well have also promoted access to justice.

Was it all worth it? That is for readers to judge. But it is submitted that the answer is yes.”

https://www.bloomsburyprofessionalonline.com/view/journal_prof_negl/b-17466709-34-2-1000205.xml

  • Finally, in the Journal of Immigration, Asylum and Nationality Law, Joshua Kerr contributes an article on the recent addition of section 40(4A) to the British Nationality Act 1981:

“This article analyses the new deprivation of citizenship power in s 40(4A) of the British Nationality Act 1981, inserted by the Immigration Act 2014, and particularly the requirement that deprivation targets must be naturalised citizens. It is shown that this condition violates art 14 ECHR taken together with art 8, relying on the recent seminal cases of Genovese and Biao. Using the reasoning of the ECtHR in these cases, this article argues (1) that deprivation of citizenship, which seriously affects the social identity of the individual, is within the ambit of art 8 for the purposes of art 14 and (2) that the government must give compelling or very weighty reasons, unrelated to ethnic origin, to justify the discriminatory nature of s 40(4A). This article argues that a suitable justification has not been given and probably does not exist and that therefore s 40(4A) is incompatible with the ECHR. To rectify this problem and remain compliant with the UK’s international law commitments regarding statelessness, s 40(4A) must be repealed.”

https://www.bloomsburyprofessionalonline.com/view/journal_immigration/b-17467632-32-2-0000201.xml

Precedent of the month: Back to Termination of Employment for this month’s precedent, a sample settlement agreement. This document sets out a standard settlement agreement to be used in most ordinary circumstances. Guidance notes as to how to use the agreement effectively are provided. The draft includes a number of clauses which are not commonly used but the need for them may arise from time to time. As with all precedents, it is important to be aware that it needs to be carefully tailored to the particular circumstances of each case and cannot be copied out blindly. The guidance notes provide assistance in this.

https://www.bloomsburyprofessionalonline.com/view/terminate_employment/TTOE-S-00668.xml

Written by Ellie MacKenzie

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