Lifting Automatic Suspension

June 19th, 2017 by James Goudie KC in Decision making and Contracts

In Alstom Transport UK Limited v London Underground Limited and Transport for London (2017) EWHC 1406 (TCC) the principal issue was whether the Court should hear an application for specific disclosure before the application to lift the suspension. Coulson J concluded that it was appropriate for the application for specific disclosure to be heard in advance of the application to lift the suspension. Read more »

 

Service of notice

June 19th, 2017 by James Goudie KC in Council Tax and Rates

In UKI (Kingsway) Limited v Westminster City Council (2017) EWCA Civ 430 the appeal concerned the formal validity and service of a completion notice under Schedule 4A to the Local Government Finance Act 1988 (“the 1998 Act”) delivered by the respondent, Westminster City Council (“the respondent” or “the billing authority”), on 5 March 2012 in respect of premises on the 3rd-6th floors of a building at 1 Kingsway, London WC2 (“the premises”). The completion notice purported to bring the premises into the 2010 rating list with effect from 1 June 2012. Read more »

 

Discrimination

June 15th, 2017 by James Goudie KC in Judicial Control, Liability and Litigation

Is authoritative material showing that discriminatory conduct or attitudes were widespread elsewhere in an institution admissible in considering the motivation of an alleged individual discriminator? It may be, rules the Court of Appeal in Chief Constable of Greater Manchester v Bailey (2017) EWCA Civ 425, at paragraph 99.  Such material may make it more likely that the alleged conduct had occurred or that the alleged motivations were operative.  Alternatively, there might be some more specific relevance.  However, such material has always to be used with care.  Moreover, the fact finding tribunal has in any case to identify with specificity the particular reason why it considers the material in question to have probative value as regards the motivation of the alleged discriminator in any particular case. There is no doctrine of “transferred malice”.

 

ECHR Article 8

June 9th, 2017 by James Goudie KC in Human Rights and Public Sector Equality Duty

Suspension and/or consequential publicity may damage reputation. When it does so Article 8 may be engaged.  Proportionality will then apply to the suspension.  See paragraphs 95-98 inclusive of Divisional Court Judgment in R (Crompton) v Police and Crime Commissioner for South Yorkshire (2017) EWHC 1349 (Admin).

 

Allocation

June 1st, 2017 by James Goudie KC in Housing

In R (C) v Islington LBC (2017) EWHC 1288 (Admin) Jeremy Baker J has held that the Council’s local lettings policy is lawful. It is not unlawfully discriminatory contrary to the ECHR (paragraphs 64-94) : it is proportionate and justified. For the same reason it is not contrary to Section 29 of the Equality Act 2010 (paragraphs 95-98). The Council had complied with the PSED when it introduced the policy (paragraphs 99-105). Introducing and maintaining the policy was not in breach of Section 11 of the Children Act 2004 (paragraphs 106-115).

 

Cost saving

May 24th, 2017 by James Goudie KC in Decision making and Contracts

The Supreme Court has reaffirmed that whereas saving cost is “of course” a legitimate objective of public policy, budgetary considerations “cannot” justify discrimination. In other words, if a benefit is to be limited in order to save costs, it “must” be limited in a way that is neither directly nor indirectly discriminatory and is a proportionate means of fulfilling the legitimate objective: R (Coll) v SoS for Justice (2017) UKSC 40, at paragraphs 40 and 42, per Lady Hale, Deputy President. Read more »

 

Notice of Redundancy

May 22nd, 2017 by James Goudie KC in Social Care

In R (Forsey) v Northern Derbyshire Magistrates’ Court (2017) EWHC 1152 (QB) the claimant was prosecuted as a director of a company which entered into administration, and whose 84 employees at a warehouse were made redundant. It was alleged that the company committed an offence by failing to notify the Secretary of State for Business, Innovation and Skills (“the SoS”) in writing of a proposal to dismiss and make redundant 20 or more employees. The claimant is said also to be guilty on the basis that he had consented to, connived at, or neglected to prevent this failure. The failure was alleged to be contrary to Section 194 of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the Act”). Read more »

 

Improvement notices

May 22nd, 2017 by James Goudie KC in Housing

Wood v Kingston Upon Hull City Council (2017) EWCA Civ 364 concerns an Improvement Notice served by a local housing authority under the Housing Act 2004 (“the 2004 Act”). The appeal to the Court of Appeal, by the authority, arose in the following way.

Mr Wood is the freehold owner of a first floor flat (Flat 4) at 141 Princes Avenue in Hull. Ms Peacock is the freehold owner of the ground floor flat immediately below. The vertical boundary between the two flats is at the mid-point of the joists between the ceiling of the ground floor flat and the floor of Flat 4. Hull City Council took the view that there was inadequate fire resistance between the two flats, and served notice under Section 12 of the 2004 Act on both Mr Wood and Ms Peacock requiring remedial works to be carried out. The notice stated that the ground floor flat had a section of original lath and plaster ceiling which was in very poor condition with some sections missing. That lack of material separation increased the likelihood of unchecked spread of fire into Flat 4 from the ground floor flat in the event of a fire occurring within the ground floor flat. The notice specified two alternative schemes: Read more »

 

National Minimum Wage

May 22nd, 2017 by James Goudie KC in Social Care

The three appeals to the Employment Appeal Tribunal in cases including Focus Care Agency Ltd v Roberts, UKEAT/0143/16/DM, consider the proper approach to the question whether employees who “sleep-in” in order to carry out duties if required engage in “time-work” for the full duration of the night shift, or whether they are entitled to the National Minimum Wage, under the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999 and 2015, only when they are awake and carrying out relevant duties. Read more »

 

Construction contract

May 19th, 2017 by James Goudie KC in Decision making and Contracts

Sutton Housing Partnership Limited (“SHP”) manage the housing stock of Sutton Council.   In SHP v Rydon Maintenance Limited (2017) EWCA Civ 359 SHP sued as employer under a construction contract.  The Defendant is a contractor which specialises in the repair and maintenance of housing.  SHP engaged Rydon to carry out maintenance and repairs to the housing stock which the Council owns.  The contract was based on the National Housing Federation’s standard form contract, 2011.  The contract conditions were expressed by reference to “Key Performance Indicators” (“KPIs”) and “Minimum Acceptable Performances” (“MAPs”), as measured by a KPI, as set out in the KPI Framework.  The KPI Framework was a contractual document.

The issue in the case was whether the MAP levels were contractual, expressly or impliedly. The Court of Appeal has held that the MAPs were contractual.  Both parties must have intended the contract to specify MAPs, applying the approach to commercial contracts mandated by the Supreme Court in Rainy Sky v Kookmin Bank (2011) 1 WLR 2900, (2011) UKSC 50 and Arnold v Britton (2015) UKSC 36, (2015) AC 1619.  That was the only rational interpretation of the “curious contractual provisions”.  The Council’s manager retained a valuable power to terminate for poor service.

 

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