In Lyfar-Cisse v Brighton & Sussex Uni Hospitals NHS Trust, an old friend revisits the EAT for a 3rd time (4th if you add in her involvement in Kalu), this time on apparent bias and time limits. assets.publishing.service.gov.uk/media/5f994d8c…#ukemplaw
2/ The apparent bias case stemmed from a wing member hearing 2 of L-C's claims against the Trust. It wasn't something that caused L-C concern at the time - she made no recusal application & waived the right to object - but she changed her mind after losing.
3/ The EAT (Lord Fairley - think it is his 1st EAT judgment & an excellent one at that) applied the fair minded & informed observer test from Porter v Magill & had no doubt that apparent bias was not made out. In any event, she freely waived the right to object.
4/ On time limits, L-C agreed at the case management PH that her discrim claims were prima facie out of time & that she'd rely on the just & equitable extension discretion. That position wasn't changed until closing, when L-C 1st sought to rely on a later in-time event.
5/ L-C hadn't applied to amend to add that later event as a basis of claim, hence was relying on an event in time on which she was not asking the ET to make findings of breach of the EqA.
6/ The EAT relied on South West Ambulance v King, where it was held that in-time conduct found not to be discriminatory can't be relied upon as part of a course of conduct. The EAT in Lyfar-Cisse held that also applies where the C isn't relying on the event as an EqA breach.
7/ In any event, the EAT held it unfair for a claimant to change its position at closing submissions stage as to what events were relied upon re time. That would deprive a respondent of the opportunity to lead rebuttal evidence that this new event was part of a course of conduct.
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1/ Where #ukemplaw-yers are confronted with issues of illegality, today's Supreme Court judgment in Stoffel v Grondona is required reading, applying a common sense approach to Patel v Mirza, with a real emphasis on the integrity of the legal process. supremecourt.uk/cases/docs/uks…
2/ I'll leave others to read the facts (you really need a diagram). What's important is that the Court endorsed Lord Toulson's 3-part test, applied it in a simple common-sense way & explained there's no need to go to part (c) where a+b favours rejecting the illegality defence.
3/ What's particularly useful is the Court's highlighting of the need at parts (a) & (b) to focus on the impact of allowing/rejecting the defence on the integrity of the legal process. Will allowing this illegal actor to bring their claim really have an impact?
1/ Is anyone else intrigued why the EHRC Report didn't consider whether the Labour leadership's interference in antisemitism investigations to a far greater extent than any other area of complaint was direct rather than indirect discrimination?
2/ That would, of course, require investigation into motivation in interference: did something about these antisemitism complaints explain that disparity? Perhaps a difficult issue for the EHRC to determine, but one which would provide for a far more powerful & damning outcome.
3/ In making that analysis, it's worth reminding ourselves that in a court a party asserting direct discrimination needs only to show facts from which a court could properly conclude the party's actions were motivated by the Jewish religion or ethnicity.
1/ Ryan v South West Ambulance Service is a fascinating EAT judgment for everyone who loves to ponder on Essop. It's a beautifully crafted judgment as well as HHJ Tucker's 2nd effort in 2 months to improve us all as practitioners. A real advantage of an ex-EJ being in the EAT.
3/ The case involves a 67-year-old employed in education/learning development roles. The Respondent put in place a Talent Pool policy. Advantages of being in the talent pool (TP) were additional training & (relevantly) that some managerial appointments picked solely from the TP.
THREAD 1/ The Employment Tribunals (Constitution and Rules of Procedure) (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2020 (ET(CRP)(EC:ERP)(A) Regs 2020 for short!) are here. I've read them so you don't have to #ukemplawlegislation.gov.uk/uksi/2020/1003…
2/ Changes to the 2013 ET Rules & accompanying regs come into force on 8 Oct. Changes to the ACAS EC Rules come into force on 1 Dec & apply when notification occurs on or after that date.
The new Regs include a number of noteworthy provisions, set out in order in this thread.
3/ First, they widen the judicial pool. Given the limits on in person hearing space, I presume that this will mainly be used for CVP/telephone hearings & mainly to clear out the simpler stuff rather than for lengthy trials, but someone reading will correct me if that's wrong.
1/If an ET accepts a man has had paranoid delusions for 4 years that a Russian gang is out to get him, is he disabled? Not necessarily, said the EAT in Sullivan v Bury Street Capital. I'm not convinced the EAT came out with the right answer. assets.publishing.service.gov.uk/media/5f58d6ee…#ukemplaw
2/ S was a sales exec. Following a short relationship with a Ukrainian woman, he started having paranoid delusions that a group of linked Russians were out to get him. Those delusions started in around May 2013 & continued to Sept '17 when S was dismissed after signing off sick.
3/ S said the delusions impacted him in various ways - sleep deprivation, neglect of friends, timekeeping/attendance issues, personal hygiene, attendance to his personal mail. He was supported by the opinion of a joint medical expert & a psychiatrist.
1/ #Uber Supreme Court occasional thread: 3 features to limb (b): 1) Contract to do work for another; 2) personally; 3) not in customer relationship. These are the features required by Parliament for entitlement to minimum wage. #ukemplaw
2/ Lord Leggatt is concerned about the provisions against contracting out. @DinahRoseQC makes clear those provisions (s.49 NMWA) don't impact on the interpretation of whether an arrangement falls within limb (b), but only where the contract does fall within that relationship.
3/ The starting point must be the contract, with parties free to enter into an agreement outside of limb (b). There's no warrant for adopting a broad construction of limb (b) or a special approach to interpretation of contract (the batter between CA majority & minority).