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 »

 

Consultation

March 19th, 2018 by James Goudie QC in Decision making and Contracts

In Kebbell Developments Ltd v Leeds City Council (2018) EWCA Civ 450 Singh LJ said in relation to an alleged duty of consultation at common law:-

“61.    … on its facts, Moseley concerned a situation in which there was a statutory duty of consultation. There was therefore no issue in that case about the existence of a duty of consultation.

  1. In my respectful view, it is important to be careful to distinguish between different senses of the word “consultation” which can sometimes be found in the authorities on this subject. First, there may be cases in which there is no dispute about the existence of an obligation to consult which is imposed upon a public authority. Very often the source of that obligation will be legislation, so there will be a statutory duty of consultation. In such cases the context will usually be not an individual decision which affects a particular person or persons but rather the formulation of general policy or draft legislation.
  2. The issue which may then arise is what the exact content of that duty of consultation requires. That was considered in the well known case of Gunning … :

“First, … consultation must be at a time when proposals are still at a formative stage. Second, … the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response. Third … adequate time must be given for consideration and response and, finally, fourth, … the product of consultation must be conscientiously taken into account in finalising any statutory proposals.” Read more »

 

Employment Contract

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

Case C-518/15, Ville de Nivelles v Matzak, in which the ECJ gave Judgment on 21 February 2018, concerned the employment contract between the Town of Nivelles in Belgium and Mr Matzak, a volunteer firefighter for the Town.  The issue related to stand-by times and remuneration.  During periods of stand-by duty, every member of the volunteer fire service serving in the Nivelles fire station must remain at all times within a distance of the fire station such that the period necessary to reach it when traffic is running normally does not exceed a maximum of 8 minutes, and be particularly vigilant so as to remain within range of various technical means used to call staff and to leave immediately, by the most appropriate means, when staff on stand-by duty are called.

This involved the concepts of “working time” and “rest periods” in the Working Time Directive. Read more »

 

Interpretation of Contract

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

Amey Birmingham Highways v Birmingham City Council (2018) EWCA Civ 264 concerned a local authority’s PFI highway maintenance contract. The contract was intended to run for 25 years.  It was a “relational contract”.  At paragraph 93, Jackson LJ, with whom Moylan LJ and Sir Stephen Tomlinson agreed, observed that: “Any relational contract of this character is likely to be of massive length, containing many infelicities and oddities.  Both parties should adopt a reasonable approach in accordance with what is obviously the long-term purpose of the contract.  They should not be latching onto the infelicities and oddities, in order to disrupt the project and maximise their own gain”.

 

Adequacy of damages

February 16th, 2018 by James Goudie QC in Decision making and Contracts

In the public procurement case of Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform 2018/20, the Irish Court of Appeal declined to lift an automatic suspension, holding that (1) the claimant could obtain only Francovich damages, (2) damages were therefore not an adequate remedy for the claimant, and (3) the fact that damages are not an adequate remedy may well be decisive in terms of evaluation of where the greatest risk of possible injustice and the balance of convenience lies.