Budget Allocation

August 14th, 2018 by James Goudie QC in Decision making and Contracts

In R ( KE ) v Bristol City Council ( 2018 ) EWHC 2103 ( Admin ) the Court quashed the Council’s High Needs Block budget allocation, which reduced expenditure on Special Educational Needs. The Judge found that there had been a duty to consult by reason of the duty of inquiry under the PSED, Section 27 of the Children and Families Act 2014, and common law. He also found that there was a breach of Section 11 of the Children Act 2004.



August 1st, 2018 by James Goudie QC in Decision making and Contracts

In R ( Brooke Energy Ltd ) v SOS for BEIS (2018) EWHC 2012 ( Admin ) a Divisional Court has restated the principles as to when there is a non-statutory duty to consult. The circumstances in which the common law will impose a duty on a public authority to consult by virtue of the doctrine of legitimate expectation are threefold. First, where there has been a promise to consult. Second, where there is an established practice of consultation. The alleged practice or promise must be clear, unequivocal and unconditional. A practice must be sufficiently settled and uniform to give rise to an expectation that the claimant would be consulted. Moreover, there must be unfairness amounting to an abuse of power for the public authority not to be held to the practice.

Third, a duty to consult will be imposed where a failure to consult would lead to conspicuous unfairness. However, the duty will arise on this basis only in exceptional situations.


Employment Contracts

July 25th, 2018 by James Goudie QC in Decision making and Contracts

In James-Bowen v Commissioner of Police of the Metropolis (2018) UKSC 40 the Supreme Court addressed the implied duty of trust and confidence in employment contracts.  They said:-

“16.    The mutual obligation of employer and employee not, without reasonable and proper cause, to engage in conduct likely to destroy or seriously damage the relationship of trust and confidence required between employer and employee is a standardised term implied by law into all contracts of employment rather than a term implied from the particular provisions of a particular employment contract (Malik v Bank of Credit and Commerce International SA [1998] AC 20, per Lord Steyn at p 45D). It was described by Lord Nicholls in Malik at p 35A, as a portmanteau concept. In that case the House of Lords considered it the source of a more specific implied obligation on the part of the employer bank not to conduct its business in a dishonest and corrupt manner, the breach of which gave rise to a cause of action for damage to the economic and reputational interests of its employees. Similarly, in Eastwood v Magnox Electric plc [2004] UKHL 35; [2005] 1 AC 503 the House of Lords recognised an obligation on an employer, in the conduct of his business and in the treatment of his employees, to act responsibly and in good faith (per Lord Nicholls at para 11). The implied term has been held to give rise to an obligation on the part of an employer to act fairly when taking positive action directed at the very continuance of the employment relationship (Gogay v Hertfordshire County Council [2000] IRLR 703; McCabe v Cornwall County Council [2004] UKHL 35; [2005] 1 AC 503; Bristol City Council v Deadman [2007] EWCA Civ 822; [2007] IRLR 888; Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512; [2015] IRLR 112; Stevens v University of Birmingham [2015] EWHC 2300 (QB); [2016] 4 All ER 258). Furthermore, any decision-making function entrusted to an employer must be exercised in accordance with the implied obligation of trust and confidence (Braganza v BP Shipping Ltd [2015] UKSC 17; [2015] 1 WLR 1661).” Read more »


Employment Contract

July 18th, 2018 by James Goudie QC in Decision making and Contracts

It is clearly implicit in a term in an employment contract conferring a contractual right to appeal against disciplinary action taking the form of dismissal that, if an appeal is lodged, pursued to its conclusion and is successful, the effect is that both employer and employee are bound to treat the employment relationship as having remained in existence throughout. This is not a matter of implying terms, but simply the meaning to be given to the words of the relevant contract, reading them objectively. By including a contractual right of appeal in the employment contract, the employer makes available to the employee a facility to seek to overturn the disciplinary decision made against him and to have the dismissal treated as being of no effect. If the appeal is successful, then subject to any other contractual provisions, the employee is entitled to be treated as having never been dismissed, to be paid all back pay and to have the benefit of all other terms of his contract of employment through the relevant period and into the future. Those terms include the usual implied duty of an employer to maintain trust and confidence. Conversely, if the employee exercises his right of appeal under the contract and does not withdraw the appeal before its conclusion, it is obvious on an objective basis that he is seeking to be restored to his employment and is asking and agreeing (if successful) to be treated as continuing to be employed under his contract of employment for the interim period since his previous dismissal and continuing into the future, so that that dismissal is treated as having no effect. It is not a reasonable or correct interpretation of the term conferring a right of appeal that a successful appeal results in the employee having an option whether to return to work or not. If an appeal is brought pursuant to such a term and is successful, the employer is contractually bound to treat the previous dismissal as having no effect and the employee is bound in the same way. That is inherent in the very concept of an appeal in respect of a disciplinary dismissal. Read more »


Disability Discrimination

May 17th, 2018 by James Goudie QC in Decision making and Contracts

City of York Council v Grosset (2018) EWCA Civ 1105 concerns a claim of discrimination arising from disability under Section 15 of the Equality Act 2010 (“EqA”) in relation to the dismissal of a teacher on grounds of gross misconduct.  The claimant was a teacher employed by the respondent. He suffers from a disability. He was employed by the respondent with full knowledge of this. At the outset various reasonable adjustments were agreed to accommodate his disability. Unfortunately, no proper record was kept of the position and it was lost sight of when a new head teacher took over at the school. The claimant’s case is that he was subjected to an increased workload which he found he could not cope with. He became very stressed under this increased pressure of work. His health suffered badly.  That in turn increased the level of stress. Read more »


Amendment of Contract

May 17th, 2018 by James Goudie QC in Decision making and Contracts

In Rock Advertising Ltd v MWB Business Exchange Centres Ltd (2018) UKSC 24 the Supreme Court gave effect to a contractual term precluding amendment of an agreement other than in writing, a “No Oral Modification” or “NOM” clause.  Lord Sumption said (para 10) that a law should and does give effect to a contractual provision requiring specified formalities to be observed for a variation.  Party autonomy operates up to the point when the contract is made, but thereafter only to the extent that the contract allows (para 11).  The law of contract does not normally obstruct the legitimate intentions of businessmen, except for overriding reasons of public policy: yet there is no mischief in NOM clauses, nor do they frustrate or contravene any policy of the law (para 12).


Termination of Employment Contract

April 25th, 2018 by James Goudie QC in Decision making and Contracts

The issue in Newcastle upon Tyne Hospitals NHS Foundation Trust v Haywood (2018) UKSC 22 was when the notice period begins to run, if an employee is dismissed on written notice posted to his home address. If the answer is not specified in the contract of employment, is it (i) when the letter would have been delivered in the ordinary course of post; (ii) when it was in fact delivered to that address; or (iii) when the letter comes to the attention of the employee and he or she has either read it or had a reasonable opportunity to do so? Read more »


Variation of Employment Contracts

April 24th, 2018 by James Goudie QC in Decision making and Contracts

Does an employee continuing to work following implementation of a pay freeze constitute acceptance of a variation of contractual provisions in collective agreements giving entitlement to pay progression? It all depends on the circumstances of the case, says the Court of Appeal in Abrahall v Nottingham City Council (2018) EWCA Civ 796.  Underhill LJ reviewed Rigby v Ferodo, Jones v Associated Tunnelling, Selectron, Khatri, and Cartwright v Tetrad.  Underhill LJ described Khatri as “significant”, including because of its endorsement that conduct relied upon to constitute an acceptance must be “only acceptable to the employee having accepted the proposed variation”.  Underhill LJ said:-

Read more »


Prejudice to commercial interests

April 18th, 2018 by James Goudie QC in Decision making and Contracts

In Case No. EA/2017/0057, Hartlepool Borough Council v The Information Commissioner, the FTT was concerned with whether under FoIA Section 43(2) disclosure would or would be likely to prejudice the commercial interests of any party and if so whether the public interest in maintaining that exemption outweighs the public interest in disclosure. The FTT upheld the Commissioner’s Decision that the disputed information must be disclosed.  The Borough Council’s Appeal was dismissed.

The request was for information in relation to the transfer of ownership in 2003 of what was then Teesside International Airport (“TIA”).  TIA had been owned by 6 Tees Valley local authorities, including Hartlepool. In 2003, Peel Group reached an agreement with them to acquire a 75% shareholding in TIA.  TIA became Durham Tees Valley Airport (“DTVA”). The 6 local authorities retained a combined 25% shareholding in DTVA, with Peel Investments Limited, a wholly owned subsidiary of the Peel Group, being the majority shareholder. The aggregate shareholding of the 6 local authorities in DTVA is currently 11%. Read more »


Underground Car Park

March 26th, 2018 by James Goudie QC in Decision making and Contracts

In Case E-4/17, EFTA Surveillance Authority v Norway, Judgment on 21 March 2018, the EFTA Court considered a tender procedure launched by the Municipality of Kristiansand for the construction and operation of an underground car park.  The issue was whether the contracts constituted a public works concession.  The Court concluded that the contracts were of pecuniary interest (paragraph 73), they were of direct economic benefit to the municipality (paragraph 74), and constituted a public contract (paragraph 75); that the construction of the car park constituted works (paragraph 76); that the titles given to the contracts cannot be decisive (paragraph 77); that the crucial objective of the contracts was the construction of the car park, but there was an element of services inherent in the contract, the services element could not be singled out in a separate procedure, and the works and services elements of the contracts formed an indivisible whole (paragraph 79); that when contracts include elements of both works and services, it is the “main object” of the contract which determines the body of rules to be applied (paragraphs 80-82); that the main object was the works (paragraphs 83-84); and that the contracts were public works contracts (paragraph 85). Read more »