The Supreme Court has confirmed, in Uber v Aslam (2021) UKSC 5, at para 133, that time spent “on call “counts as “working time “if the worker is required to be at or near their place of work. The leading case remains Case C-518/15, Ville de Nivelles: retained firefighters’ standby time at home is working time: (2018) IRLR 457. On the national minimum wage Judgment is still awaited from the Supreme Court in Royal Mencap Society v Tomlinson- Blake.
In order for a practice to give rise to a legitimate expectation the practice must be tantamount to a clear and unambiguous representation. It must be so unambiguous, so widespread, so well-established and so well-recognised as to carry within it a commitment to a relevant group of treatment in accordance with it. It must be impliedly tantamount to a promise and the practice must be consistent. So reaffirmed by Fordham J in Havant Biogas Ltd v Gas and Electricity Markets Authority (2021) EWHC 84 (Admin) at para 60.
Westminster City Council v Sports and Leisure Management Ltd (2021):EWHC 98(TCC) concerns the contractual allocation of risk in respect of losses under a leisure services contract arising from the covid-19 pandemic lockdowns. There was for the purposes of the contract a “ specific change in law”. The issue was as to to the consequences. Kerr j gave a detailed Judgment and granted declarations.
See United Trade Action Group v TfL (2021) EWHC 72 ( Admin ), a case concerned with taxis as a form of public transport, at paras 94-99 and 165/166 on the exercise of traffic management powers, at paras 102-107 on relevant considerations and policies, at paras 175-177 on the PSED, at paras 197-207 on ECHR Art1/1, and at paras 219-226 and 249-251 on legitimate expectation.
The 1246 pages Brexit deal has some procurement rules. The UK’s initial offer was to reaffirm its existing commitments in the WTO’s Government Procurement Agreement. The eventual trade deal builds on the GPA rules and extends the coverage of sectors beyond the GPA, including education. The deal sets out basic rules on competitive tendering that are simpler and less prescriptive than EU Directives, and includes a requirement for there to be an impartial authority to assess challenges to contract awards.
In R ( MP ) v SoS for Health and Social Care (2020) EWCA Civ 1634, dismissing an appeal from Lewis J, as he then was, the Court of Appeal observed :-
In R ( Article 39 ) v SoS for Education (2020) EWCA Civ 1577 the Court of Appeal holds that the omission by the SoS to include in consultation bodies representing children in care, before making coronavirus amendments to SIs governing the children’s social care system, was unlawful. The Court sets out the general principles relating to consultation at paragraphs 26-37 inclusive, and its discussion and conclusions from paragraph 75.
In R ( Article 39 ) v SoS for Education (2020) EWHC 2184 ( Admin) Lieven J held that the Adoption and Children ( Coronavirus ) Regulations 2020, relaxing regulatory safeguards for looked after children, were lawful, notwithstanding that the Children’s Commissioner had not been consulted. This was for two interrelated reasons : (1) extreme urgency in a crisis; (2) the interests of children being taken into consideration through consultation with providers of care to the children : paras 81/82.
A promise or representation sufficient to give rise to a substantive legitimate expectation will generally be a “ specific undertaking directed at a particular individual or group “, rather than to a large or diverse group. So held by a Divisional Court in R ( Asbestos Victims) v Lord Chancellor (2020) EWHC 2108 ( Admin) at paras 55-61.
As an aspect of the rule of law, it is for the Court to assess what fairness requires. That is to be determined in the particular case-specific context. So too the Court will determine in that context whether the procedure adopted meets those requirements. This is the case both when an individual decision is challenged and when a challenge is advanced on the ground that the arrangements themselves are systemically or inherently unfair.