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Discrimination Law London Borough of Lewisham v Malcolm

03 Jul 2008, 13:36 by Joseph Neville

Labels: disability, discrimination, employees, employment-law, employment-tribunal, legal-profession

The House of Lords has published an important decision on disability discrimination law, Lewisham v Malcolm [2008] UKHL 43, that turns much previous authority on its head. The particular case concerned housing: Malcolm was a secure tenant of the local authority, but he left his flat and subletted it. This had the legal effect of cancelling his security of tenure and converting his tenancy to a contractual one. The local authority served notice and brought a possession claim. Under normal circumstances, since the subletting was a breach of the tenancy, the local authority would be successful.

Malcolm's defence was that he had breached his tenancy agreement as a result of his schizophrenia, and that he was disabled within the meaning of the Disability Discrimination Act 1995. Section 22(3)(c) of the 1995 Act provides that evicting a person from housing is unlawful if in doing so the landlord discriminates. Section 24 the provides that discrimination will exist if "(a) for a reason which relates to the disabled person's disability, [the landlord] treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and (b) [the landlord] cannot show that the treatment is justified."

This statutory wording has been the subject of much dispute over the years - if Malcolm's case is right then the council cannot evict him for unlawfully subletting his flat. Nor could they (or any other landlord) evict a tenant for falling into arrears if this was due to a disability.

The House of Lords addressed the following issues:

  • Does the reason for the eviction "relate" to the tenant's disability?

To determine this question the Lords followed the usual practice of looking for the non-disabled comparator. In this case, the correct comparator was a person without a disability who had nonetheless sublet the flat and moved out. Since the local authority would have treated this person in exactly the same way, it could not be said to be treating Malcolm "less favourably" such as to give rise to a claim of disability discrimination.

  • Is it relevant whether the landlord knew of the tenant's disability?

The Lords' view was robust- the local authority must have knowledge (or imputed knowledge) of the disability before it can be said to have discriminated. This ruling resolves a considerable a number of conflicting authorities.

This is an important judgment, as it relates not only to housing, but to employment law, education, transport and goods and services.

Written by Joseph Neville, Barrister at New Walk Chambers specialising in Employment Law.

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Care Proceedings

09 Apr 2008, 11:22 by Rebecca Fitton-Brown

Labels: care, child, family, legal-profession

  The Public Law Outline has come into effect for care proceedings issued from the 1st of April 2008. It replaces the Protocol for Judicial Case Management. The aim is to reduce delay in care proceedings by improving case management and identifying the issues as early as possible and also by improving communication and therefore, it is hoped, co-operation between the parties.

  Some of the new documents such as the Timetable for the Child (including care, health and education steps as well as legal steps) and the Case Management Record (improved filing system for the court) may be applied to pre-April care proceedings if considered appropriate.

 The present six stages have been replaced by four stages.

  Pre-application work is more extensive including a Letter Before Proceedings, early preparation of a Schedule of Proposed Findings, and filing of Supplementary Form PLO1 (containing a pre-proceedings checklist and record of case management documents filed) with the application.

 Cases are to be actively case-managed by one or two case management judges who will be appointed for each care case.

 "Early Final Hearing cases" are to be identified at the first hearing.

 Alternative dispute resolution is to be encouraged by the court wherever possible.

 Written by Rebecca Fitton-Brown, Barrister at New Walk Chambers, specialising in Family Law.

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1 strike (plus a lapsed warning) and you are out!

14 Mar 2008, 09:52 by Robert Rees

Labels: blog, court-of-appeal, dismissal, employer, legal-profession, misconduct

 The status of expired warnings for misconduct

It used to be thought that an expired final warning given to an employee could not be taken into account when an employer was considering dismissal. This at least is what was thought to be the effect of Diosynth Ltd v Thomson [2006] IRLR 284. There the Court of Session held that an employer would be acting unreasonably in treating a previous warning which had expired as a determining factor in deciding to dismiss for similar breaches. An employee was entitled to expect a lapsed warning to mean what it said and to cease to have effect on expiry. The EAT in Webb v  Airbus UK Ltd v Webb [2006]  284 said that where but for a lapsed warning a dismissal would not have occurred, the dismissal would be unfair.

The Court of Appeal have now allowed the employers appeal in Airbus UK Ltd v Webb "The Times" 26 February 2008. Mr Webb had just finished a 12 months warning for fraudulent use of company time when he and 4 others on nights were caught watching the tele at work outside break time. He was dismissed but not the other 4. The Court of Appeal in distinguishing Diosynth said that in Webb the employee's later conduct on its own was shown by the employer to have been the principal reason for dismissal. In Diosynth a different issue was being addressed: there the position of the employer was that the expired final warning tipped the balance in favour of the dismissal as the other factors taken together would not have justified dismissal. It was the first misconduct of the 4 who were not dismissed but who received a final warning. In Mr Webb's case it was repeated misconduct, for which he was then dismissed, having received the lesser penalty of a final warning previously. The EAT in Webb wrongly held that Diosynth was authority for the proposition that a previous spent warning should be ignored for all purposes.

So, an employer cannot treat the lapsed warning as determinative, but can take such lapsed warning into account. Gedditt?

It will have to be seen if this puzzling analysis stands up to scrutiny in the House of Lords if there is an appeal. It seems to go against the ACAS Code of Practice which recommends the desirability of employers disregarding spent warnings, [see paras 22 and 24 of the Code], is against the legitimate expectations of employees acting in reliance upon internal disciplinary procedures and is hardly good for industrial relations where certain and consistent rules are at a premium.

Rather than "2 strikes and you are out", it is more a case of "1 strike and you are out" (if you did it  before even though we forgave you!)

Written by Robert Rees, Barrister at New Walk Chambers, specialising in Employment Law.

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Die zweite Woche

29 Feb 2008, 11:33 by John Snell

Labels: barristers, germany, intern, law, legal-profession

  Anfang der Woche bekam ich sehr zu meiner Freude erstmals einen Fall mit, in dem es um Vertragsrecht ging. Der Termin verlief dann jedoch voellig anders, als ich erwartet hatte. Der Klaeger hatte naemlich (angesichts seiner bevorstehenden Auswanderung nach Zypern) genug von dem Rechtsstreit, der sich bereits fast ein Jahr hingezogen hatte und war deshalb bereit, dem Beklagten bei der Hoehe des geforderten Schadensersatzes entgegenzukommen, wenn dieser die Verletzung seiner vertraglichen Pflichten nicht laenger bestreiten und seinen counterclaim zurueckziehen wuerde. So kam es, dass ich anstelle einer langen Verhandlung nur einen fuenfminuetigen Termin, bei dem die barrister dem Richter die kurz zuvor auf dem Gerichtsflur erzielte Einigung vorlegten, mitbekam.

Zu erwaehnen waere noch, dass der barrister des Beklagten Deutscher war. Ich finde es bemerkenswert, dass man einen Beruf, bei dem es so sehr auf rhetorische Faehigkeiten ankommt, auch als Nichtmuttersprachler erfolgreich ausueben kann.

Gestern war ich dann erstmals ausserhalb von Leicester unterwegs: Ich begleitete einen barrister von New Walk Chambers zu einem Termin am Nottingham County Court. Es ging um einen Verkehrsunfall, ueber dessen Zustandekommen drei verschiedene Versionen vorgetragen wurden. Der Zeuge des Klaegers, der zum Zeitpunkt des Unfalls sein Beifahrer gewesen war, bestaetigte wenig ueberraschend dessen Darstellung des Geschehens. Der Zeuge des Beklagten hingegen wich in seiner Version erheblich von der des Beklagten ab, was letzteren natuerlich nicht gerade glaubwuerdig erscheinen liess. Hinzu kam, dass der Klaeger und sein Zeuge ihre Darstellung wesentlich praeziser vortrugen und auf die Fragen im Kreuzverhoer mit mehr Nachdruck und Bestimmtheit antworteten. Der Richter entschied daher verstaendlicherweise zugunsten des Klaegers.

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My second week at Chambers

28 Feb 2008, 17:20 by John Snell

Labels: barristers, blog, english, germany, intern, law, legal-profession, nottingham, student, university

  My second week began with a contract case in the Leicester County Court. I had read through the papers before and expected a controversial argument on breach and damage.

However, things developed in a way which is quite typical for the English legal system:  The barristers started to negotiate the amount of damages on the court floors and eventually the case was settled "last minute", i.e. just before the parties were supposed to enter the courtroom. So, instead of determining which of the party had actually been in breach of the contract, the judge then only had to approve of the agreement to which the parties had come.

Interestingly enough the barrister of the other party originally came from Germany. I found it remarkable that it is actually possible to practice law successfully as a foreigner.

Yesterday I got to observe a case in the Nottingham County Court dealing with a car accident. The parties gave two completely different versions of the event. The claimant's witness who had been his passenger when the accident happened described it in the same way as the former. The defendant's witness surprisingly did not confirm the defendant's statement but introduced a third version of the accident. Therefore, the judge finally decided in favour of the claimant.

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