In small family businesses, disagreements are often patched up informally. However, as an Employment Tribunal (ET) ruling showed, it is vital to remember that legal standards of fairness in employment relationships apply to them in just the same way as to giant corporations.
The case concerned a woman who had worked as a stylist in a hair salon owned by her sister for over 20 years. Heated exchanges between them were commonplace, but would generally be resolved amicably, sometimes with a bunch of flowers and an apology. Matters took a different course, however, following a row in which the stylist swore at her sister and refused to leave the premises when asked.
The stylist was served with a formal suspension letter and she was summarily dismissed following a disciplinary process conducted by her sister’s partner, who performed an administrative role in the business. After she sought to appeal, she was denied a hearing on the basis that she had put forward no further information and had stated that she did not want her job back in any event.
After she launched an unfair dismissal claim, the ET took account of the modest size of the business and its limited administrative resources. The stylist admitted having used foul language and refusing to leave the salon and her sister’s partner, who was trying to help out in good faith, had done his best to follow a fair procedure. Both he and the sister genuinely believed that the stylist was guilty of gross misconduct which justified her dismissal.
In upholding her complaint, however, the ET pinpointed flaws in the decision-making process and found that her dismissal fell outside the range of responses open to a reasonable employer. Her sister’s partner had closed his mind to her claim that she had been provoked and she had been given no opportunity to challenge her sister’s account of the argument. Those shortcomings were exacerbated by the fact that she was not allowed to appeal against her dismissal.
There was no evidence that the particular altercation between the sisters was any different from previous rows between them and the ET found that the incident could reasonably have been dealt with by issuing a warning to the stylist not to overstep the mark again. The ET nevertheless found that, given her admitted misconduct, she bore 25 per cent of the responsibility for her own dismissal. The amount of her compensation will be assessed at a further hearing.
Having your will professionally drafted and signing it in front of a solicitor really is the best way of ensuring that your wishes are honoured after you are gone. In a case on point, the High Court gave effect to a matriarch’s final will, despite her daughter’s concerted attack on its validity.
By the will, the woman, who died just before her 97th birthday, left small legacies to two of her daughters and everything else that she owned, including her home, to her son. One of the daughters claimed that she had lacked the mental capacity to make a valid will and that the son had exerted undue influence over her.
In ruling on the dispute, the Court noted that the will was rational on its face. The daughter’s claim that her mother was incapacitated by dementia when she signed it was wholly undermined by contemporaneous medical records. There was also no evidence to support the daughter’s allegations that her mother’s signature on the will was a forgery or that the son had forced her to sign it.
The professional drafting of the will and its execution in the presence of a solicitor created a strong presumption in favour of its validity. The daughter’s contradictory, self-serving and deliberately misleading evidence came nowhere near to dislodging that presumption. The Court had no hesitation in upholding the validity of the will and thanked the son’s lawyer for his assistance in what was an extremely emotionally charged case.
The internet unfortunately provides an opportunity for wide publication of defamatory statements at the click of a button. However, a High Court case strikingly showed that the law can move fast to protect reputations and put a stop to such activities.
The case concerned a wealthy investor and philanthropist who was the subject of a number of wounding posts by a prolific user of a social media platform. In summary, they alleged that he was a criminal money launderer who had lobbied in favour of a hard Brexit at the behest of a foreign power.
After lawyers launched defamation proceedings on his behalf, a judgment was swiftly obtained against the user, who put in no defence to the claim. An injunction was issued against him requiring him to remove the offending posts, but that was done not by him but by the platform provider.
In awarding the philanthropist £10,000 in damages, the Court found that all practicable steps had been made to contact the user and that he had chosen to play no part in the proceedings. His conduct was serious in that he had cavalierly accused the philanthropist of criminal misconduct in a very public forum.
The user’s behaviour in response to the claim had aggravated the injury to the philanthropist’s feelings and the latter was entitled to full vindication. Although an award of damages in excess of £20,000 would have been more than justified, the philanthropist had limited his claim to half that sum. Unless the user agreed to publish a correction and apology on his social media profile, he would be required to post a summary of the Court’s judgment.
Companies facing financial difficulties sadly often collapse with little notice, leaving their hard-working employees bereft. As an Employment Tribunal (ET) decision showed, however, those affected are not without legal redress and can win compensation if they have been made redundant without consultation.
The case concerned a long-established furniture manufacturing company which went into administration. All three of its plants were closed with little warning and almost 200 workers were made redundant. They launched proceedings against the company, seeking protective awards under Section 189 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA).
In upholding their claims, the ET noted that at one of the plants, where there was no recognised trade union, there had been no attempt to engage in collective consultation before the redundancies were announced. The legal requirement to elect an employee representative in order to give employees the opportunity to engage in such consultation had not been complied with.
Although a number of individual employees had purportedly been consulted, the process was a meaningless sham in that the decision to close the plant had already been taken. It was at one point mooted that employees might be willing to work for a period for no pay, but such suggestions were entirely ignored. The closure of the other two plants was also infected by an absence of employee consultation.
Given the company’s failure to comply with the requirements of TULRCA, The ET made the maximum available award of 90 days’ pay to each redundant worker. If those sums could not be recovered from the company’s administrators, the workers could have recourse to the Redundancy Payments Office, part of the Department for Business, Energy and Industrial Strategy.
Metropolitan Green Belts are precious but, in an era of escalating housing demand, they cannot be viewed as sacrosanct. The High Court made that point in opening the way for the release of swathes of Green Belt land for construction of thousands of new homes over a 15-year period.
The case concerned a local authority area 89 per cent of which was protected by Green Belt policies. The need for more housing in the area, particularly affordable homes, was acute. Pursuant to the recommendations of an inspector following a public examination, the council adopted a local plan which involved the release of large tracts of Green Belt land for development.
The inspector calculated that 562 homes needed to be built in the area every year until 2034, equating to a total of 10,678 homes over the plan period. That rate of development far exceeded historic levels, but the inspector also recommended a buffer of about 4,000 homes, bringing the total to 14,602.
Emphasising the pressing need for more affordable homes in the area, the inspector found that the buffer was required to take account of unexpected contingencies, including slippage or non-delivery of development projects. There were exceptional circumstances justifying alterations to Green Belt boundaries which would not cause widespread harm to the openness of the area.
A local campaigner joined two parish councils in challenging the plan. They argued that the inspector’s assessment of future housing need was irrational. His adoption of such a substantial buffer meant that thousands more homes would be built over the plan period than the council objectively needed.
Dismissing their complaints, however, the Court emphasised the consequences that would arise if none of the sites in issue were released from the Green Belt and allocated for housing. That would, over the plan period, produce a shortfall of 6,295 homes when measured against the inspector's target figure of 14,602.
There was nothing illogical in the inspector’s conclusion that a significant buffer was needed and its size was a matter for his planning judgment. He had justifiably concluded that the circumstances were exceptional, in that there was no prospect of the area’s employment, business and housing needs being met over the plan period without releasing parts of the Green Belt for development.
Keeping patients in hospital against their will can amount to false imprisonment. In a shocking case on point, an NHS trust was ordered to pay substantial damages to the loved ones of a pensioner whose wish to go home was for months high-handedly disregarded by hospital staff.
The woman, who suffered from a number of medical conditions including insulin-dependent diabetes, was admitted to a hospital after she attended accident and emergency complaining of shortness of breath. Her condition was grave and she remained an inpatient for almost eight months before she was discharged to a nursing home. She died there nine days later from sudden heart failure after she pulled out her own tracheostomy tube.
After her daughter launched proceedings on behalf of her estate, the High Court found that hospital staff had negligently failed to inform the nursing home that she required one-to-one nursing, or at least constant supervision. In particular, the nursing home had not been notified that she had previously tried to remove her tracheostomy tube and had repeatedly expressed a wish to go home.
In also upholding the daughter’s claim that her mother had been falsely imprisoned, the Court found that hospital staff had shown an appalling disregard for her and her family’s rights, let alone their wishes and feelings. There had been no attempt to assess her capacity to make decisions for herself and the procedures required by the Mental Capacity Act 2005 had been specifically overridden.
In a high-handed and oppressive fashion, her family had been deliberately excluded from the decision-making process that led to her discharge to the nursing home. The NHS trust that runs the hospital was ordered to pay £15,470 in damages, that sum representing £130 for each of the 119 days during which she was falsely imprisoned. It was also ordered to pay £5,000 in aggravated damages and £3,500 to reflect the pain and suffering she endured before her death.
Getting divorced without taking legal advice is a high-risk strategy and can come back to bite you years after the event. A naïve husband found that out to his cost after falling victim to a series of frauds perpetrated by his ex-wife.
Following their separation at the end of a long and prosperous marriage, the middle-aged couple appeared to have settled their differences following mediation. A memorandum of understanding (MOU) was produced dealing with, amongst other things, the basis on which the proceeds of sale of the former matrimonial home, then worth about £2.8 million, were to be divided between them.
Without the husband’s knowledge, however, a consent order which formally ended the marriage was subsequently amended at the wife’s behest so that it no longer reflected the terms of the MOU. The order substantially watered down the husband’s rights in respect of the proceeds of sale and committed him to paying the wife lifelong maintenance of £66,000 a year. Having wanted a clean break, he would never have consented to making those payments.
The wife’s objective was to support a fraudulent application for a £900,000 mortgage in respect of a lavish new home. She sent to the lender a falsified document and fraudulent emails, purporting to be from the husband. Evidence as to whether the husband’s signature on the consent order was a forgery was equivocal but, if he did sign it, he did so without taking legal advice and had failed to read it carefully.
After the truth emerged, the husband applied to set aside that part of the consent order which dealt with the proceeds of sale. In upholding his application, the High Court found that he had been very foolish and naïve, but that the wife had been thoroughly dishonest. Had it not been for her disgraceful conduct, a clean break would long ago have been achieved. As it was, she had found herself bankrupt, living on benefits and owing the husband a great deal of money.
Paying tribute to the husband’s realistic response to the wife’s behaviour, the Court ordered her to pay him £248,930 that he should have received from the proceeds of sale, together with his £250,000 legal costs. In rejecting the wife’s cross-application for maintenance from the husband, the Court found that she was entirely the author of her own downfall and that to accede to her claim would be to allow her to benefit from her fraud. The Court’s ruling finally delivered the clean break that the husband had from the outset desired.
While the Christmas party is a great opportunity for staff to socialise together and celebrate their achievements over the past year, and for employers to thank them for the work they do, it is important to remember that employers owe their employees certain obligations, even outside work, when they have organised the event themselves.
Employees should be aware that their conduct during the party must comply with normal standards and must not breach workplace equal treatment and anti-harassment policies. Employers can be vicariously liable for their employees' behaviour at such functions, so it is important to be able to show that all reasonable steps have been taken to prevent behaviour that could give rise to such a claim. This includes making staff aware of the appropriate policies regarding conduct at work events and providing adequate training.
In order to prevent what should be a happy occasion from leading to recriminations or worse, an employer should take certain basic steps. Here are some of the more important ones:
- Try to make sure the date of any work event does not coincide with the dates of religious festivals;
- Carry out a risk assessment – this should include the venue and, in particular, the possible risks associated with serving alcohol. Making sure employees can get home safely is important, so consider hiring transport or providing taxis solely for this purpose if necessary. Ensure soft drinks are provided as an alternative to alcoholic drinks and that individual dietary requirements are catered for;
- Ensure that, if employees' partners are invited, there is no discrimination with regard to who is included. Ensure also that reasonable adjustments are made to allow any disabled employee or partner to attend and that any employees absent on maternity leave or because of long-term sickness are included;
- Where possible, make sure that the arrangements accommodate the requirements of employees of different religions;
- Ensure that employees understand the difference between 'banter' and behaviour that could be considered to infringe the dignity of any person present. You may wish to appoint event supervisors to oversee the function, to whom staff can report any problems. If unwanted behaviour is observed, act quickly to prevent it from reoccurring and take prompt action if a complaint is received;
- Make sure that employees who are expected to attend work the next day understand that absence through over-indulgence is likely to be regarded as a disciplinary matter; and
- Make sure employees are aware that any illegal acts will not be tolerated.
The biggest problems that are likely to arise are that inappropriate behaviour may occur, especially if alcohol flows too freely, and that there may be conduct which members of a particular faith find objectionable.
Your firm's contract of employment will probably deal with most or all of these issues. However, it is sensible to have a separate policy on what is expected of employees at workplace social events and to remind them of its contents in advance of any function.
For advice on any aspect of employee behaviour or contracts of employment, contact us.
Workplace disciplinary proceedings must always be thorough and fair, but that is all the more the case where an employee is accused of dishonesty. An Employment Tribunal (ET) succinctly made that point in awarding substantial damages to an employee who was accused of making a fraudulent expenses claim.
The policy of the company for which the man worked was that only expenses that had been incurred wholly, exclusively and necessarily for business purposes could be claimed by employees. External HR consultants were engaged to investigate after he was alleged to have lodged an expenses claim in respect of a pub meal attended by himself, his girlfriend, a friend of hers and his line manager. The latter was the principal witness against him in the disciplinary proceedings.
There were a range of factual disputes as to what was and was not said during and after the meal and as to whether the pub’s bill was in respect of two people or four. However, the line manager’s account was ultimately accepted and the man was dismissed on grounds of gross misconduct. He was found to have submitted a fraudulent expenses claim in knowing breach of the company’s policy.
In upholding his unfair dismissal claim, the ET noted that the gravity of the allegation mandated careful critical analysis of all the evidence. Although the investigation was diligently performed, the company’s managing director, who took the decision to dismiss the man, ignored a number of inconsistencies in the line manager’s account. On any reasonable analysis of the evidence, the latter’s testimony was unreliable.
The ET made a total 50 per cent deduction from the man’s compensation to reflect his own share of responsibility for his dismissal and the chance that, had a fair procedure been followed, he could have been fairly dismissed. Nevertheless, his award came to £24,749, made up of a basic award of £734, £7,000 in respect of three months’ notice pay and £17,015 by way of compensation.
Increases in the value of your main or only home are exempt from Capital Gains Tax (CGT) – but proving that a property is your principal private residence (PPR) can be far from easy and that is why taking legal advice on the issue is always wise. The point was made by the case of a woman who sold a flat at a £270,000 profit but failed to establish that she was entitled to the exemption.
The one-bedroom flat was bought for £630,000 and sold for £900,000 five months later. The woman did not notify HM Revenue and Customs (HMRC) of that gain on the basis that the flat was her PPR throughout her period of ownership and that no CGT was therefore payable. HMRC took a different view and assessed her for £52,656 in CGT. She also received a penalty of £14,217.
In rejecting her appeal against those demands, the First-tier Tribunal (FTT) noted that the flat had been sparsely furnished and that utility bills for the property were never transferred into her name. She owned a larger property nearby which would have been a more convenient home for her and her husband and which she had used as her correspondence address. She had also claimed PPR relief on the subsequent sale of that property for £2.3 million.
HMRC had failed to establish that her sole purpose in buying the flat was to sell it on at a handsome profit. There was, however, a complete absence of evidence that she ever occupied it. Even had she done so, such occupation would have lacked the necessary degree of permanence or continuity to render the property her PPR.
Entering into property transactions without expert legal advice is always a hostage to fortune. A restaurateur found that out after he was dishonestly induced to enter into an illegal sub-lease of commercial premises by a businessman whom he trusted as a friend.
Following a series of informal meetings, the restaurateur agreed to take a sub-lease of the premises from the businessman. A written agreement was drafted, although not by a qualified solicitor. There were two somewhat different versions of the agreement in existence, one of them signed, the other not. The signed version was replete with handwritten additions, sowing further confusion as to what had in fact been agreed.
The restaurateur launched proceedings against the businessman after the landlord found out that the premises had been illegally sublet and took possession of them. In upholding his claim, the High Court found that he had been induced to enter into the agreement by the businessman’s deliberate misrepresentation that he had obtained the landlord’s consent to subletting the premises.
The businessman had also falsely led the restaurateur to believe that the underlying lease, which was due to expire in under five years, had 16 years to run. The Court found that, had he known that the businessman’s representations were untrue, the restaurateur would have walked away and never entered into the agreement. The businessman was ordered to pay him £91,532 in damages, that sum representing the full extent of his losses and expenses arising from the agreement.
When a company is taken over by another, its employees may have mixed feelings, but the legal position is clear – they must shift their loyalties to the new owner. Two men who found themselves in exactly that position were hit hard in the pocket after maintaining their attachment to the old guard.
The men worked for a transport and logistics company in which they each had a 5 per cent shareholding. After a purchaser acquired the remaining 90 per cent of the shares, they retained their stakes in the company and continued in their employment under new management for about two years.
They eventually exercised put options, requiring the purchaser to buy their shares at their fair value. Under the terms of agreements signed at the time of the takeover, that would have had the effect of automatically terminating their employment on three months’ notice. However, after they were instead dismissed on grounds of alleged gross misconduct, they launched proceedings.
The company contended that they were guilty of a number of material breaches of their employment contracts and that their dismissals were justified. They responded with claims that the sole motive for sacking them was to avoid the purchaser’s contractual obligation to pay them a fair price for their shares.
In ruling on the matter, the High Court found that the men were aware of accounting irregularities in the company’s affairs prior to the buy-out and that it was in the grip of a cash-flow crisis. Unbeknown to the purchaser and the company’s directors, they had shared highly confidential information concerning the company with a former shareholder, who was the father of one of them. Notwithstanding the change in ownership, their loyalties had remained firmly with the company’s former management, rather than with their employer.
Rejecting their wrongful dismissal claims, the Court found that their breaches of the confidentiality obligations that they owed to the company were serious and went to the heart of the employer/employee relationship. On the basis that they could no longer be trusted, the company was entitled to dismiss them. As defaulting shareholders, they were also entitled to only a nominal price for their shares.
Can the reason for an employee's dismissal ever be other than that given in good faith by the decision-maker appointed by the employer? The Supreme Court has answered that burning question in a test case concerning a whistleblower who was sacked on the basis of performance concerns trumped up by her dishonest line manager.
The Royal Mail worker was a whistleblower, having made protected disclosures under Section 43A of the Employment Rights Act 1996 (ERA). Her line manager’s response was to pretend that her performance was inadequate. Bullying which the worker suffered at the line manager’s hands resulted in her being signed off work, suffering from work-related stress, anxiety and depression.
Another employee (the decision-maker) was appointed to consider whether the worker should be dismissed. She was, due to her condition, unable to present her case so that the decision-maker, who acted entirely in good faith, had no reason to doubt the truthfulness of material which had been fabricated by the line manager. The worker was dismissed on grounds of inadequate performance.
In rejecting her claim of automatic unfair dismissal under Section 103A of the Act, an Employment Tribunal found that the decision-maker had held a genuine belief that her performance was inadequate and that, therefore, was the reason for her dismissal. That ruling was reversed by the Employment Appeal Tribunal but subsequently reaffirmed by the Court of Appeal.
In upholding the worker’s challenge to the latter decision, the Supreme Court ruled that, where the real reason said to justify a dismissal is hidden behind an invented reason, it is incumbent on judges to penetrate through the invention. The Court concluded that, if a person in the hierarchy of responsibility above an employee decides that she should be dismissed for one reason, but hides it behind an invented reason which the decision-maker adopts in good faith, the reason for the dismissal is the hidden reason rather than the invented reason.
The Court noted that, although the case raised an apparent issue of general importance, the facts of the matter were extreme. Instances of dismissal decisions being taken in good faith, not just for a wrong reason but for a reason dishonestly constructed by an employee’s line manager, would not be common. The outcome of the case clearly accorded with Parliament’s intention that, where the real reason for a dismissal is whistleblowing, the automatic consequence should be a finding of unfair dismissal.
Scientific views on the environmental impact of incineration plants and other waste processing facilities may differ widely but, as a Court of Appeal decision showed, judges are not in the business of second-guessing expert decision-makers.
The case concerned an environmental permit granted by the Environment Agency (EA) to the operator of an incinerator which was capable of recovering energy from about 585,000 tonnes of non-hazardous waste annually. Development consent had previously been granted for the plant, the construction of which was viewed as a nationally important infrastructure project.
A local campaign group argued that the permit was issued on the factually incorrect and scientifically erroneous basis that measures adopted for dealing with emissions from ash generated by the incinerator would prevent the discharge of heavy metals into surface water. It was submitted that there was a real risk of pollutants finding their way into drinking water supplies.
The EA and the operator conceded that there was an error in a document which provided information in support of the permit application. EA scientists, however, were adamant that there was no pollution risk and that any contaminated water would be successfully contained in a sealed system. The group’s judicial review challenge to the permit was rejected by a judge.
In dismissing the group’s appeal against that outcome, the Court found that the error had not affected the decision to issue the permit. Although there was a fundamental difference of opinion between experts as to the risks of surface water contamination, the EA’s conclusions were neither irrational nor based on incorrect science. The EA was entitled to a margin of appreciation in the exercise of its expert judgment and it was not the Court’s role to substitute its views for those of EA scientists.
The right to privacy is increasingly powerful, but basic fairness demands that those who wish to litigate must at least be willing to disclose their names and addresses. The High Court made the point in striking out a so-called ‘right to be forgotten’ claim which a businessman had sought to pursue against Google under a cloak of anonymity.
The businessman objected that a post which gave details of a criminal conviction in his past could be found on the internet via Google. The conviction being spent under the Rehabilitation of Offenders Act 1974, he claimed that its continued publication amounted to defamation, malicious falsehood and a breach of data protection principles.
Given the sensitive nature of his claim, and the risk that its purpose might in part be frustrated were he to be publicly identified, he was granted permission to bring the proceedings anonymously, using the cypher ‘ABC’. He was, however, ordered to disclose his full name and address to Google and to the Court. After he failed to comply with that requirement and subsequent orders to similar effect, his claim was automatically struck out.
Dismissing his application for relief against that sanction, the Court noted that it is obvious that those on the receiving end of litigation are entitled to know by whom they are being sued. It was hard to conceive of any circumstances in which civil litigation could proceed fairly in the absence of such identification.
The businessman had made numerous attempts to avoid his obligation to identify himself and his approach to judicial orders and directions could properly be viewed as abusive. To permit him to proceed with his claim whilst continuing to hide his identity would also breach Google’s human right to a fair hearing. The Court’s decision meant that his claim remained struck out.
Directors are bound to faithfully pursue the bests interests of the companies they serve. The High Court emphasised that point in ruling that a former director of a pub company was justifiably removed from office after acquiring an interest in a potentially rival hostelry.
The company ran a real ale pub which operated on wafer-thin margins. After four of its shareholders voted to remove the fifth from his office as a director, he launched proceedings under Section 994 of the Companies Act 2006 on the basis that his position as a minority shareholder had been unfairly prejudiced.
He argued that his legitimate expectation to be involved in managing the company had been ignored, and sought an order requiring the other shareholders to buy out his shares in the company at a price to be fixed by the Court. He also sought compensation for the loss of his office as a director.
In dismissing his claim, the Court noted that, prior to his removal, he had acquired an interest in another pub nearby. His co-shareholders had not consented to him taking that step and were anxious that the other pub would attract away the company’s customers, rendering it financially unviable.
The Court found overwhelming evidence that the other pub could directly affect the company’s business by diluting its trade. The man’s involvement with the potentially competing business was in manifest conflict with the duties he owed to the company. As he had not behaved reasonably, his removal from office was justified and he had suffered no unfair prejudice.
Workplace personality clashes are sadly common but a perception that an employee is difficult to work with is not enough to justify his or her dismissal. A college found that out to its cost after an Employment Tribunal (ET) ordered it to pay more than £60,000 in compensation to one of its former lecturers.
In finding that the woman’s inappropriate behaviour was a primary cause of a breakdown in personal relationships within her department, the college noted that three of her colleagues had cited her conduct as a factor which contributed to their decisions to resign. Many perceived her behaviour as challenging and she was dismissed on the basis that her behaviour had destroyed the relationship of trust and confidence that should exist between an employer and employee.
In ruling on her unfair dismissal claim, the ET noted the college’s concern about the sheer volume of complaints against her and the heavy resource implications of dealing with them. On the basis that many of her colleagues viewed her as a difficult person to work with, the college was also anxious about the prospect of further resignations.
In upholding her complaint, however, the ET found that the procedure followed by the college was fundamentally unfair and was from the outset aimed at justifying her dismissal. She had been given no opportunity to answer unparticularised allegations and there had been no inquiry as to whether they were in fact justified. An unfair assumption had been made that she had in every instance been at fault.
After she lodged a formal grievance, complaining of, amongst other things, failures of management, the college did not investigate. She had been suspended for eight months, pending investigation of unsubstantiated allegations, and her extended absence had led to a hardening of attitudes against her return. The ET ruled that she was in no way to blame for her dismissal and awarded her a total of £62,940 in damages. That included sums in respect of holiday and notice pay.
Those who publish grossly offensive, indecent, obscene or menacing material on the internet commit a criminal offence – but what about those who post a hyperlink to such material? The High Court addressed that issue in an important test case.
The case concerned a woman who performed grossly offensive, anti-Semitic songs at a far-right event. She was not responsible for posting a video of her performance on YouTube, but published a hyperlink on her blog which took internet users directly to the footage. Her subsequent conviction by magistrates of offences under the Communications Act 2003 was upheld by the Crown Court.
In rejecting her judicial review challenge to that outcome, the High Court found that, as a matter of common sense, the woman was guilty as charged. With a view to widening public distribution of the offensive material, she had provided internet users with a direct signpost to her performance of her own songs. By publishing the hyperlink, she created an interface between two websites, which ensured the conveyance of the footage from one to the other. The Act was directed at preventing the public communication network being used as a means of disseminating grossly offensive material, and that was precisely what she had done.
The woman had also been found guilty of an offence under the Act in relation to another video which she posted directly onto YouTube. In challenging that conviction, she argued that she had sent the footage to an inanimate object – YouTube’s server, which is located in a Californian bunker. There having been no communication of the material to any living person, it was submitted that there was no offence.
In rejecting that argument, the Court found that the fact that the message had been sent to YouTube’s server, rather than the woman’s next-door neighbour, was legally irrelevant. On a true interpretation of the Act, her offence was complete when she sent the footage and it did not have to be viewed by anyone. She had in any event always wanted the video to be seen by other people and they were her intended recipients.
A property’s location within a conservation area is often presented as a selling point by estate agents, but the designation brings with it heavy legal responsibilities. A flat owner found that out to his cost after installing a PVC bay window without planning permission.
The ground-floor window only required planning consent because the flat lay within a conservation area. After the local authority issued an enforcement notice requiring the owner to remedy the breach of planning control, he complained that about 90 per cent of front-facing windows fitted to other nearby properties were made of PVC but that no similar action had been taken against other homeowners.
In allowing his appeal against the notice, a government planning inspector found that the window’s installation did not materially affect the building's external appearance. In doing so, the inspector defined the ‘building’ under consideration as the block of three terraced houses of which the man’s flat formed part. He noted that all of the ground-floor windows across the whole block were made of PVC.
In upholding the council’s challenge to the inspector’s decision, however, the High Court noted that, in common parlance, each house in a terrace is considered a building. The inspector had given no adequate reasons for his somewhat surprising conclusion that the relevant ‘building’ consisted of the whole terrace.
The inspector was required to focus solely on the visual impact that the window had on the building and the prevalence of PVC windows elsewhere in the conservation area was thus legally irrelevant. The inspector's decision was quashed and the Secretary of State for Housing, Communities and Local Government was directed to reconsider the matter in the light of the Court’s ruling.
Every disabled employee is entitled to have reasonable adjustments made for them so that they are not disadvantaged in going about their work. In a case on point, an ME and chronic fatigue syndrome sufferer who could not meet the requirements of her employer's attendance policy won tens of thousands of pounds in compensation.
The occupational therapist’s disability meant that she was more likely to need periods of sick leave than other employees. Her NHS trust employer responded by making an adjustment to its sickness absence management policy whereby she could have five periods of sickness absence annually, instead of the standard three afforded to other personnel.
The adjustment was kept in place, apparently successfully, for four years before it was abruptly removed. Whilst other adjustments were made, including a reduction in the woman’s working hours, she was unable to meet the attendance requirements and was ultimately dismissed.
Her complaints of discrimination and a failure to make reasonable adjustments were subsequently upheld by an Employment Tribunal (ET), as was her claim of unfair dismissal, although the ET ruled that there was a 50 per cent chance that she would have been dismissed within four months in any event. She was awarded substantial damages, including a basic award of over £10,000, more than £30,000 for future loss of earnings and £24,500 for injury to her health and feelings.
In rejecting the trust’s challenge to that outcome, the Employment Appeal Tribunal could find no fault in either the ET’s calculation of her award or its properly reasoned conclusion that the abrupt withdrawal of an adjustment that had worked well for years was unjustified and that her dismissal was thus unfair.