Case Studies

Barely a day goes by without a court making a decision about something interesting. This is where we tell you about our favourites and those that we think you should know about.
  • 17/10/2017 Gender segregation in school found to be discriminatory

    The Court of Appeal in HM Chief Inspector of Education, Children’s Services and Skills v Interim Executives Board of Al-Hijrah School has ruled that a school’s complete gender segregation of pupils between age 9 and 16 was sex discrimination. 

    The Court of Appeal in HM Chief Inspector of Education, Children’s Services and Skills v Interim Executives Board of Al-Hijrah School has ruled that a school’s complete gender segregation of pupils between age 9 and 16 was sex discrimination. 

    Al-Hijrah School was a voluntary aided faith school for boys and girls aged 4 to 16. The school had an Islamic ethos and for religious reasons boys and girls from year 5 onwards were separated for lessons, trips, breaks and lunchtimes. In June 2016 Ofsted inspected the school and raised concerns about its segregation policy in a subsequent report; suggesting that the policy limited pupils’ social development and was unlawful under the Equality Act 2010. Ofsted’s report also rated the School as ‘inadequate’ and provided that the existence of the segregation policy was part of the reasoning for this rating. The School brought a judicial review challenge to the report against the Chief Inspector of Ofsted. 

    In the first instance the High Court found that Ofsted had been wrong to conclude that there was a breach of the Equality Act; since both boys and girls were being denied the opportunity to interact, socialise and learn with or from the opposite sex; and there was no distinction between opportunities afforded to either sex. The High Court held that the policy was not discriminatory on the basis that it was ‘separate but equal’. Ofsted appealed the decision to the Court of Appeal. 

    The Court of Appeal overturned the High Court’s finding and held that the correct approach under section 13 of the Equality Act 2010 was to consider the treatment from the perspective of an individual child at the school, rather than his or her sex as a group. The child was being denied the opportunity to mix with the opposite sex, which was a detriment imposed due to the protected characteristic of sex. For example; a girl pupil who wished to socialise with a boy pupil was denied this opportunity because of her sex; whereas if she did not have this protected characteristic and was a boy pupil she would be able to socialise with the other boys (and vice versa for a male pupil). 

    The treatment was clearly less favourable and the denial of opportunity to mix with the opposite sex was detrimental. The Court of Appeal therefore concluded that the policy was directly discriminatory contrary to sections 13 and 85 of the Equality Act; irrespective of the fact the both boys and girls alike were suffering the detriment. 

    If you require further assistance please contact a member of the team

    © Howes Percival LLP

     

    Save to profile +

    Read More

    Gender segregation in school found to be discriminatory
  • 17/10/2017 Dismissal not unfair where employer included previous incidents in disciplinary

    The Employment Appeal Tribunal held that the inclusion of previous incidents of misconduct or concern (which did not result in disciplinary action) in an investigatory report did not render a dismissal unfair.

    NEWS

    The Employment Appeal Tribunal held that the inclusion of previous incidents of misconduct or concern (which did not result in disciplinary action) in an investigatory report did not render a dismissal unfair. The EAT held that it would be perverse to find that a dismissal was procedurally unfair because the investigation had been too thorough. The fairness of the dismissal should concentrate on what the decision maker took into account in reaching the decision to dismiss.

    DETAIL

    In NHS 24 v Patricia Friel Pillar, Mrs Pillar was employed by the NHS as a nurse practitioner. She answered calls from members of the public and provided triage by asking questions and referring onward care if required. She was dismissed from her employment by reason of gross misconduct after a third Patient Safety Incident. The first two previous incidents had not been treated as disciplinary matters and instead Mrs Pillar was provided with training. In the third incident, Mrs Pillar referred a patient who had suffered a heart attack to an out of hours GP service instead of calling 999.

    All three incidents were included in the investigative report to the disciplinary proceedings for gross misconduct against Mrs Pillar. Mrs Pillar was dismissed from her employment and presented a claim to an employment tribunal for unfair dismissal primarily on the basis that it was unfair for the previous incidents (which took place in 2010 and 2012) to have been included in the investigative report as those incidents had not led to disciplinary action.

    At first instance, Mrs Pillar’s claim for unfair dismissal was successful. The employment tribunal held that it was unreasonable and therefore procedurally unfair to include the earlier incidents in the investigate report. NHS 24 appealed to the Employment Appeal Tribunal.

    The EAT overturned the employment tribunal’s decision and held that it was within the range of reasonable responses to include the earlier incidents in the report and it would be perverse to find that a dismissal was procedurally unfair because the investigation had been too thorough.

    COMMENT

    Matthew Potter comments: "This case serves as a reminder to employers that they can, within reason, take into account previous incidents of concern or misconduct in subsequent disciplinary proceedings, even if those previous incidents were not previously the subject of disciplinary proceedings. This case confirms that both substantive and procedural fairness should be considered together and even an isolated procedural flaw during an investigation that leads to a dismissal is not necessarily enough to render a dismissal unfair. As previous authorities have established, procedural issues do not sit in a vacuum and the process as a whole including the reason for the dismissal should be considered together when considering whether the employer has acted reasonably in taking the decision to dismiss.”

    If you require further assistance please contact a member of the team

    © Howes Percival LLP

    Save to profile +

    Read More

    Dismissal not unfair where employer included previous incidents in disciplinary
  • 12/10/2017 How to get the most out of your right of way - Gore v Naheed & Ahmed [2017]

    A recent Court of Appeal decision has shed some light on a tricky area of case law relating to rights of way, and may help landowners maximise the use of their properties, where access is via a right of way. 

     

     

    A recent Court of Appeal decision has shed some light on a tricky area of case law relating to rights of way, and may help landowners maximise the use of their properties, where access is via a right of way. 

    Landowners, whose property benefits from a right of way, may now have the option to acquire neighbouring land which would also benefit from the right of way, despite this additional land not being the subject of the original deed which granted the right.  

    In order to understand how the recent decision in Gore v Naheed & Ahmed [2017] may assist landowners, we need to have a look at the established law governing rights of way and “additional land” (i.e. land which has been acquired subsequently by the landowner, which was not part of the original grant of the right of way).

    The “Rule” in Harris v Flower

    Since the case of Harris v Flower in 1904 the general rule governing rights of way and additional land was that, if you owned a plot of land which benefitted from a right of way, you could not subsequently acquire a further plot of neighbouring land, and use the right of way to access this additional land. 

    This was a relatively straightforward position, although it left landowners with very little flexibility. 

    Subsequent case law

    Various cases since Harris v Flower have muddied the waters. The Court has found in some cases that the use of a right of way to access additional land was permitted, as long as the use of that additional land was “ancillary” to the use of the original land (which did benefit from the right of way). Examples of ancillary use may include parking, or the erection of outbuildings which service the main site.

    In other cases, even where the use of additional land appeared ancillary, the Court declined to grant access. 

    The decision in Gore v Naheed & Ahmed

    This year, the case of Gore v Naheed & Ahmed has helped to clarify the position, and has set out some rules which govern when additional land may be accessed using an existing right of way. There are two stages to this test:

    1. The use of the additional land must be ancillary to the use of the original land; and
    2. The wording of the original grant of the right of way must provide for ancillary use (i.e. by including wording such as “a right of access for all purposes in connection with the use of Plot A”).

    Opportunities

    This might present opportunities for landowners where access is only via a right of way and they would wish to acquire adjoining land.  

    Landowners will need to pay careful attention to the wording of the original grant, though, and will need to ensure that their use of the additional land is ancillary to the use of their original land. 

    For further information, please contact Bill Trow on 01603 580039 or by email to bill.trow@howespercival.com  

    The following is a link to the judgment in Gore v Naheed & Ahmed [2017]:

    http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2017/369.html&query=(gore)+AND+(naheed)+AND+(ahmed)

    © Howes Percival LLP  Howes Percival LLP is a limited liability partnership registered in England and Wales with registered number OC 322781 and is regulated by the Law Society.

     

    Save to profile +

    Read More

    Rights of way and additional land
  • 09/10/2017 Intention? Motive? This is a lease renewal not a murder trial!

    A landlord can oppose a statutory renewal of tenant’s commercial lease under the Landlord and Tenant Act 1954 on certain grounds set out in the Act. The interpretation of these grounds, in this case whether or not the landlord’s intent and/or motive affected their reliance on the grounds, is key to determining if a renewal is granted.

    S Franses Limited v The Cavendish Hotel (London) Limited

    The recent case of S Franses Limited v The Cavendish Hotel (London) Limited has expounded one of the landlord’s grounds of opposition, namely section 30(1)(f) of the Act (known as the redevelopment ground, Ground F).

    The tenant, S Franses Limited, held their premises in the Cavendish Hotel in London under two leases, which were due to expire in January 2016. The tenant sought renewal of these leases. The landlord, The Cavendish Hotel (London) Limited, opposed the renewal relying on Ground F.

    Under Ground F a landlord can refuse a renewal of a lease if the landlord intends to demolish or reconstruct the property (or a substantial part of it), such that it would not be reasonable to do these works without obtaining possession of the property.

    What works did the landlord intend to do?

    The landlord proposed a scheme of works which, by their own admission, contained elements that were solely included to ensure that they would obtain possession of the tenant’s premises, and therefore were contrived to ensure reliance on Ground F.

    It was clear that the works, in particular the elements that solely existed for the purposes of Ground F, were not commercially viable. In fact, no planning permission had been obtained for the works, and this was required for change of use and certain other works that were not within the proposed scheme. 

    Was the landlord’s motive for undertaking the works relevant?

    In short, no. Whilst it was clear that the landlord’s motive for the works, or at the very least elements of those works, was to ensure the tenant did not get a renewal, this was deemed to not be relevant and that only the landlord’s intent to physically undertake the works mattered.

    However, it is worth noting that an uncommercial scheme of works, created for the purpose of evicting a tenant, might draw additional scrutiny in terms of proving the necessary intent. A judge will inevitably be more sceptical if works are not commercially sensible, and therefore a landlord may find it harder to prove the necessary intent. 

    What must the landlord intend?

    The landlord must have an honest, genuine, fixed, settled and unconditional intent to undertake the works which require repossession of the property. Just as importantly, the landlord must be able to prove this intent to the judge’s satisfaction. 

    Whilst there are technical points to what constitutes such intent, a good starting point is to ask – can it be proved that the landlord will do the works if the lease is not renewed?

    In S Franses Limited v The Cavendish Hotel (London) Limited a decisive factor was that the landlord gave an undertaking to commence the works as soon as they had vacant possession. This undertaking, combined with the witness evidence given by a director of the landlord, was sufficient to satisfy the judge.  

    What can a tenant do if faced with a contrived scheme of works aimed at preventing a renewal?

    Simply showing that the works are contrived is not going to help as it stands. A tenant must therefore focus on whether or not the landlord intends, and can prove that they intend, to undertake the works and whether or not the works actually require possession of the property. Specifically, a tenant should consider:

    1. Do the proposed works actually require possession of the property? This is both from a practical construction perspective, and a legal point of view. For example, it may be that elements of the works can be done under the landlord’s right of entry and therefore possession would not be required.
    2. How can the tenant ensure that the landlord completes any uncommercial elements of the works? If the landlord gives an undertaking then this will go some way towards this, however the tenant should ensure its terms contain a right for the tenant to inspect the works (ideally periodically and on completion). 
    3. Is the landlord actually in a position to be doing uncommercial works? For example, a landlord in a precarious financial position will find it much harder to persuade a judge that they have the necessary intent to undertake works at a significant cost, when the only short-term benefit is repossession.

    What should a landlord do if they want to rely on uncommercial works to regain possession of a property? 

    S Franses Limited v The Cavendish Hotel (London) Limited clearly opens up the avenue for a sufficiently resourced landlord to undertake a scheme of works to ensure repossession of the property at the end of a protected commercial lease. However, to assist in proving the necessary intent a landlord should consider:

    1. How will the landlord demonstrate intent? Consider if an undertaking can be given.
    2. How uncommercial are the works? If works are uncommercial they can still be relied on for the purposes of Ground F, but if the landlord can show a long-term rationale for the works then it will be easier to demonstrate the necessary intent.
    3. Are there any other grounds that could be relied upon to oppose a renewal? Other grounds, if applicable, could act as a backstop to any failure to sufficiently demonstrate intent.

    Appeals

    S Franses Limited v The Cavendish Hotel (London) Limited is the subject of various appeals, and a possible direct appeal to the Supreme Court, and therefore there may be further developments in the near future.

    For further information please contact either Jane Bloomer on 01604 258079 or by email to jane.bloomer@howespercival.com, or Stephen Ruse on 01604 258024 or by email to stephen.ruse@howespercival.com.  

    © Howes Percival LLP  Howes Percival LLP is a limited liability partnership registered in England and Wales with registered number OC 322781 and is regulated by the Law Society

     

    Save to profile +

    Read More

    Ground F - Landlord's redevelopment
  • 08/09/2017 EAT upholds decision in in Asda equal pay case

    The Employment Appeal Tribunal in the ASDA stores equal pay litigation has upheld the Tribunal’s decision that female claimants in retail stores can compare their pay with higher paid men in distribution centres. 

    NEWS

    The Employment Appeal Tribunal in the ASDA stores equal pay litigation has upheld the Tribunal’s decision that female claimants in retail stores can compare their pay with higher paid men in distribution centres. 

    DETAILS

    This case concerns around 7,000 claimants working in the retail division of ASDA and has potentially significant implications for the retail sector. The claimants assert that they do work of equal value with workers in ASDA's distribution division, who are predominantly male. ASDA tried to argue that because the stores and distribution centres were in different locations, with different pay arrangements, female retail workers could not compare their pay with the men in the distribution centres. However, the Tribunal found that there were common terms and conditions across the different locations so the claims could proceed (see our newsflash of 17 October 2016).  Asda appealed but the Employment Appeal Tribunal has upheld the Tribunal’s decision.

    The Employment Appeal Tribunal held that a comparison was permitted because:

    1. The Claimants’ and comparators’ pay, and terms and conditions, come from a “single source”;
    2. There are common terms and conditions across the different locations; and
    3. Comparison may be made with a hypothetical comparator where no actual comparator works at the claimant’s establishment.

    The claimants must still show they carry out work of equal value to their males comparators in the distribution centres. If they succeed in that argument then ASDA will then have the opportunity to show that it has a "material factor defence" which could justify the pay disparity. 

    The Employment Appeal Tribunal has given Asda permission to appeal to the Court of Appeal. 

    COMMENT

    Matthew Potter comments: "This case has potentially significant implications for the retail sector. ASDA has been given permission to appeal to the Court of Appeal so this might not be the final word on the issue of whether the retail workers can compare themselves with their colleagues in the distribution centres".

    If you require further assistance please contact a member of the team.

    Save to profile +

    Read More

    EAT upholds decision in in Asda equal pay case
  • 05/09/2017 Newbigin -v- Monk [2017]

    Business rates: Supreme Court held that properties undergoing substantial renovation are to receive nominal rating values

    In a decision which is good news for developers, Newbigin -v- Monk [2017], the Supreme Court held that properties undergoing substantial renovation are to receive nominal rating values.  

    The rate payer submitted that the value of a property undergoing substantial renovation should be nominal as it would be incapable of rateable occupation.  The Valuation Office contended that the property should be deemed to be in reasonable repair and therefore should be valued as such – in line with rating assumptions.  

    The case concerned a large office block in Sunderland.  On the relevant date for valuation, the rate payer was in the midst of redeveloping the property.  Ceiling tiles and parts of the raised floor had been removed and services had all been stripped out. The likelihood was that the offices were going to be separated out into three new suites.  The rate payer assumed that the property would be incapable of beneficial occupation during the period of work and had sought a rateable value of £1.  

    The Valuation Office tried to argue that rateable value should be assessed in accordance with what a willing tenant would pay a willing landlord for the property concerned, with the property's use and condition being assessed on a particular date and in line with various assumptions. One of these assumptions is that the property should be deemed to be in a reasonable state of repair unless the hypothetical landlord would consider it uneconomical to undertake those repairs.  

    The Valuation Office argued that although the redevelopment works were substantial, it would still be economic for the property to be put back into repair on the relevant date and the property should therefore be valued in its prior state and its prior use – offices – which resulted in a rateable value of £102,000. 

    In its judgement, the Supreme Court place great emphasis on the presumption of reality which underpins the rating hypothesis.  On the relevant date, the property was not capable of being occupied as offices and was genuinely a property undergoing substantial works or reconstruction.  The starting point should be whether a property can be beneficially occupied before the valuer begins to consider whether or not the property is in a state of disrepair or not.  As the reality was that the property could not be occupied, as it had no services and no ceiling tiles and parts of the raised floors had been removed, the rating assumption that a property is in a reasonable state of repair did not bite.  

    Need advice: contact Simon Murphy, Property Disputes Partner on 01223 791020 / simon.murphy@howespercival.com 

     

    Save to profile +

    Read More

    Business rates for properties undergoing renovation

Next

Prev