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August 2007 |
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This material will shortly be available at our web-site (http://russellcookesolicitors.createsend.com/t/1/l/ihjli/l/www.russell-cooke.co.uk) together with an archive of past updates.
DISABILITY DISCRIMINATION: IGNORANCE IS NO EXCUSE
The Court of Appeal decision in Courtney Malcolm v Lewisham London Borough Council extended the application of the Disability Discrimination Act 1995 (DDA 1995) in relation to possession proceedings. The Court of Appeal held in Manchester City Council v Romano that the DDA 1995 could be used as a defence to possession proceedings. However, that was a case where the court had a discretion whether to order possession. In contrast, Courtney Malcolm was a secure tenant of Lewisham LBC who had lost his statutory protection by unlawfully subletting. The Council had ended his contractual tenancy by serving a notice to quit, and therefore the Court had, or should have had, no discretion to refuse an order for possession. The Court of Appeal, considering the DDA 1995, held that the subletting was “related” to Mr Malcolm’s disability and the application for possession discriminated against him. The application for possession was therefore unlawful, and was refused. Perhaps worryingly, it did not matter that the Council had no knowledge of the disability. Discrimination for the purposes of defending a possession claim need not, therefore, be deliberate. A landlord can discriminate against a tenant by seeking possession where, although he is not doing so because of the disability, he is relying upon circumstances (e.g. loss of statutory protection) which were brought about, even only in part, by the disability. Permission has been given to the Council for an appeal to the House of Lords. In the meantime, the decision leaves the Council with Mr Malcolm as its tenant still, and other landlords and their advisers uncertain as to what enforcement steps would ever be reasonable in the case of a disabled tenant. A full analysis of the case will appear on the Russell-Cooke website shortly. Manchester City Council v Romano [2005] 1 WLR 2775
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THE WITHOUT PREJUDICE RULE
The 2004 case of BNP Paribas v Mezzotero held that discussions were only without prejudice and therefore inadmissible in Tribunal proceedings if genuinely aimed at settling a dispute. This has caused practical difficulties, as employers have been reluctant to open negotiations about the termination of employment without this protection. The Court of Appeal recently considered the application of the without prejudice rule in the case of an employee recruited on a two year fixed term contract. From the start of the contract there was dispute as to its terms and the employer eventually informed the employee that he would be dismissed at the end of the first year of employment. Negotiations then ensued to agree a compensation package and the employee wrote to the company threatening litigation if the matter was not resolved. The Court of Appeal was satisfied that the without prejudice rule applied on the basis that the parties were clearly in dispute despite the fact that proceedings had not been commenced at the start of the negotiations. The Court held that a dispute exists when from the nature of the exchanges the parties contemplated or could reasonably be expected to have contemplated litigation if their differences were not resolved. This decision should give more confidence to organisations seeking to enter into without prejudice negotiations though the risk of constructive unfair dismissal claims remains and it is generally advisable to seek professional advice. BNP Paribas v Mezzotero [2004] IRLR 508
PROVIDING INSURANCE AS A BENEFIT OF MEMBERSHIP
A number of charities provide insurance, such as insurance for personal injury, as a benefit to members. Such charities may be at risk of prosecution by the Financial Services Authority under the Financial Services and Markets Act 2000 (“the Act”) if they are not authorised by the Financial Services Authority. The provision of insurance, including selling a membership package which provides insurance, may amount to an ‘insurance mediation service’, which is a ‘regulated activity’ under the Act. Any person who carries on a ‘regulated activity’ in the United Kingdom by way of business must either be authorised by the Financial Services Authority or exempt from the need for authorisation. The regulations are complex and the precise position under the Act will depend on the particular circumstances including the manner in which insurance is made available and the associated financial arrangements. The regulations are not directed at activities of this sort and the FSA is likely to be sympathetic to charities and other not for profit organisations. The FSA has indicated that it is likely to view insurance schemes of this type as a non-business activity provided there is no evidence of a commercial intent on the part of the organisation. FSA staff will provide guidance where possible but, unfortunately, the FSA does not provide an advance clearance service. Where an organisation is in clear breach of the regulations the FSA may have no real alternative but to act. Organisations providing insurance as a member benefit should satisfy themselves that they are not providing a ‘regulated activity’ or obtain appropriate authorisation. For guidance on the regulations see the FSA Handbook at http://russellcookesolicitors.createsend.com/t/1/l/ihjli/l/www.fsa.gov.uk. For further information, please contact:
HOME WORKERS
The EAT recently considered the definition of a worker under the National Minimum Wage Act 1998. The EAT held that the fact that no mutuality of obligation exists between periods of work does not exclude the individual from being a worker or an employee during the periods of work; and the concept of “home worker” does not require the individual to work in a fixed place and can include a delivery driver. In considering whether a person is carrying on a business i.e. self-employed, a Tribunal should consider whether personal service is the dominant purpose of the contract. The power to delegate work if the individual is on holiday or “unable” to work is consistent with a contract for personal performance but delegation if the individual is “unable or unwilling” is not. The case highlights the difficult distinctions between self-employed and employed or worker status. James v Redcats (Brands) Limited [2007] IRLR 296 For further information, please contact:
ANNOUNCEMENT:
Please note that Russell-Cooke converted to a limited liability partnership (“LLP”) on 1 July 2007. The change does not affect the service provided to clients who will continue to work with the same lawyers as at present. If you have any queries about the conversion please contact the lawyer you usually deal with. Further details are available at:
OTHER EVENTS:For a full list of forthcoming events see the Charity Team’s
web-site at: The Charity Team Tel: 020 8789 9111
This material does not give a full statement of the law. It is intended for guidance only, and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke.
Copyright Russell-Cooke August 2007. To subscribe to this monthly legal update please visit http://russellcookesolicitors.createsend.com/t/1/l/ihjli/l/www.russell-cooke.co.uk/serv_charities_intro.htm and fill in the online request form, or send an email including your name and email to, charitylegalupdates@russell-cooke.co.uk An archive of past updates can be found at http://russellcookesolicitors.createsend.com/t/1/l/ihjli/l/www.russell-cooke.co.uk/serv_charities_updates.htm If you would like to reproduce some or all of our updates in your own publication, contact Shivaji Shiva on 020 8394 6486 or e-mail on Shivaji.Shiva@russell-cooke.co.uk
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