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Gender reassignment protection within the Equality Act 2010

<!-- wp:paragraph --> <p>In a week where the Home Secretary suggested that fearing discrimination for being gay in one’s country of origin should not be sufficient to qualify for asylum, it seems a fitting time to review how the Equality Act 2010 protects those within the LGBTQ+ community in the workplace. This article will focus on the protection afforded to those with the protected characteristic of ‘gender reassignment.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Equality Act 2010</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Protection for individuals who are transgender is conferred by Section 7 of the Equality Act 2010 which makes ‘gender reassignment’ a protected characteristic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There are a few points to note at the outset:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><!-- wp:list-item --> <li>The language of ‘gender reassignment’ within the anti-discrimination provisions originates in 1999. Awareness, understanding, and discussions around sex and gender identity have changed significantly since then.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Equality Act uses ‘sex’ and ‘gender’ interchangeably.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Equality Act uses the term ‘transsexual’ to refer to an individual who has the protected characteristic of gender reassignment. That term is now largely considered outdated, and this article will use the term ‘transgender’ instead.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>When it comes to the definition of ‘sex,’ the Equality Act 2010 does <strong><u>not</u></strong> define it as ‘biological sex’.</li> <!-- /wp:list-item --></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>What does ‘gender reassignment’ mean?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>S.7(1) of the Equality Act defines a person who possesses the protected characteristic of gender reassignment as follows:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘If the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person's sex by changing physiological or other attributes of sex’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The definition is a wide one. It includes individuals who have not yet taken any steps and are simply ‘proposing’ to take steps. It also makes it clear that reassigning one's sex is a process and that individuals on any part of that process will be protected. There is no requirement that a Gender Recognition Certificate should be obtained before an individual meets the definition. Finally, interestingly, the definition refers to ‘physiological <strong>or other attributes</strong> of sex’ which indicates an acceptance that sex is not entirely physiological.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Trans individuals are therefore protected from being discriminated against because they are trans. To take an example, an individual who is taken off client-facing duties shortly after informing their employer that they are trans will be able to bring a claim for direct gender reassignment discrimination. That individual has been subject to less favourable treatment (being removed from client-facing duties) because of their protected characteristic of gender reassignment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There is also protection from harassment. Trans individuals who are subjected to offensive comments about their appearance, identity, choice of clothing, or anything related to gender reassignment will be able to bring claims under the Equality Act for harassment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Much was made of the Employment Appeal Tribunal’s decision to find that ‘gender-critical beliefs’ qualified as a protected belief under s.10 of the Equality Act. However, there is a distinction between holding such a belief and being permitted to manifest it. An employer cannot subject an individual with gender-critical beliefs to less favourable treatment because they hold those beliefs, but that does not mean that the individual is permitted to express those beliefs in a way which would constitute direct discrimination or harassment of a trans individual.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was demonstrated in <strong><em>Mackereth v Department for Work and Pensions [2022]</em></strong>. A Christian employee believed in the truth of the Bible, from which it followed that he believed people could not change their sex or gender. He refused to use the preferred pronouns of transgender service users. After discussions with the DWP, he left his employment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Employment Appeal Tribunal rejected the claim of religion/belief discrimination. It held that the Claimant’s refusal to use preferred pronouns was distinct from his gender-critical beliefs. The reason that the DWP had subjected the Claimant to disciplinary action was not because he held gender-critical beliefs, but because he was not prepared to treat service users in the manner required by the DWP. Any employee who refused to do that would have been disciplined, regardless of their views.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>What about non-binary and genderfluid individuals?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There was initially some concern that the Equality Act did not include people who were genderfluid or non-binary, due to its use of the language ‘gender reassignment’ rather than ‘gender identity.’ However, in <strong><em>Taylor v Jaguar Land Rover [2020],</em> </strong>which is the only reported case to address the interpretation of s.7 of the Equality Act, the Tribunal held that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Parliament intended gender reassignment to be a spectrum moving away from birth sex, and that a person could be at any point on that spectrum. That would be so whether they described themselves as “non-binary” i.e. not at point A or point Z, “gender fluid” i.e. at different places between point A and point Z at different times, or “transitioning” i.e. moving from point A, but not necessarily ending at point Z, where A and Z are biological sex.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Case Law</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This article looks at two cases which touch on the entitlement for trans people to access bathrooms corresponding to their gender identity. Those cases are <strong><em>Taylor v Jaguar Land Rover [2020] </em></strong>and <strong><em>Croft v Royal Mail Group [2003]. </em></strong>In both cases, the Claimant was a transgender woman who was told to use the disabled toilet facilities, rather than the women’s toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong><em>Taylor, </em></strong>there was a successful claim that being told to use the disabled toilets constituted direct discrimination on the grounds of gender reassignment. In <strong><em>Croft, </em></strong>the Claimant was refused access to the women’s toilets and was instead asked to use a disabled unisex toilet. A claim for direct discrimination failed.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Croft v Royal Mail Group Plc [2003] EWCA Civ 1045</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This claim preceded the Equality Act and was brought instead under the Sex Discrimination Act 1975. That Act prohibited discrimination on the grounds of gender reassignment in essentially identical wording to the Equality Act. However, in the Sex Discrimination Act, gender reassignment was defined differently (perhaps reflective of mainstream understanding at the time):</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“‘Gender reassignment’ means <strong>a process which is undertaken under medical supervision</strong> for the purpose of reassigning a person's sex by changing physiological or other characteristics of sex and includes any part of such a process.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant in <strong><em>Croft </em></strong>had been receiving treatment from her psychiatrist, who had confirmed that she was suffering from ‘gender identity disorder, male to female transsexualism.’ The Claimant was proposing to do a real-life test and live as a woman to ensure that it was the correct way for her to proceed. The Claimant had changed her name and was taking ‘feminising’ hormones. The Claimant was asked to use the unisex disabled toilets, but she wanted to use the women’s toilets. Her employer took the view that they needed to establish the medical position to see if the Claimant had undergone surgery before they would allow her to use the female toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On behalf of the Claimant, Dinah Rose KC made submissions that were surprising given that it was 2003, being couched in language that is much more familiar today with the increasing awareness of the complexity and interplay between sex and gender. One of the submissions was that, save for exceptional circumstances contemplated in the legislation (which did not arise in this case), anatomical or biological sex was of no concern to the Respondent. The Respondent’s only concern was with social gender i.e. the sex in which employees present themselves. A person who lives and dresses as a woman has changed her name to a female name and sounds and looks like a woman must be treated in the workplace as a woman. There was no room for intrusive medical examination. Biological sex should remain private and there was no need for the Respondent to be informed of it.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal seemed troubled by the situation. It commented that it was unacceptable to hold that the Claimant must continue to use the men’s toilets but stated that it was also unacceptable to allow a person, known to the workforce as a man for many years, and with male genitals, an immediate right to use the female toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court concluded that having the protected characteristic of gender reassignment did not automatically entitle the Claimant to be treated as a woman with respect to toilet facilities. Instead, it said that such a right was acquired by making progress in the procedure of transitioning (described at the time as psychiatric assessment, hormonal treatment, a period of living as a member of the opposite sex subject to professional supervision therapy (‘the real-life test’), and in suitable cases, gender reassignment surgery).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal held that the Tribunal ‘has to make a judgment as to when the employee becomes a woman and entitled to the same facilities as other women’ although regard must be had to the Claimant’s self-definition. It held:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘It is in my judgment inherent in a situation in which two sets of facilities, male and female, are required and in which a category of persons changing from one sex to the other is recognised, that there must be a period during which the employer is entitled to make separate arrangements for those undergoing the change.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;It went on to hold that for the Claimant, who had reached the ‘real life test’ stage of the process, it was not unlawful to continue to require her to use separate facilities.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The notion that it is for Employment Tribunals to determine when a transgender woman has ‘become a woman’ is troubling. The first-instance Tribunal had held that for the purposes of the Sex Discrimination Act, a change of sex only occurs ‘when the final operation to change the physical characteristics is performed.’ That would strip much of the protection away from those undergoing gender reassignment and would be entirely at odds with the position under the Gender Recognition Act 2004.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>One of the submissions made on behalf of the Respondent was that a ‘voyeur or transvestite’ might assert that they identify as a woman in order to gain access to the women’s bathroom. Those familiar with arguments made by those in favour of excluding trans individuals from same-sex spaces will recognise the submission. It is countered in many ways, including by the recognition that a sign on a door is unlikely to prevent a voyeur from gaining access should they wish to.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The point that jumps out from the judgment is that it is not entirely clear why the claim fails. There is reference to the Respondent’s actions being appropriate, reasonable, and responsible. The difficulty is none of that is relevant for the purposes of a direct discrimination claim. The only factors to be considered as part of such a claim are: (1) was the Claimant treated less favourably; (2) was that because of her protected characteristic of gender reassignment? There was no doubt that the Claimant possessed the characteristic of gender reassignment and that the reason she had been told to use the disabled toilet was because of that characteristic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In terms of whether or not the treatment was less favourable, the Court of Appeal found, effectively, that if the Respondent continued to act as it was, then its actions would become discriminatory. That suggests that the Court’s view was that telling the Claimant to use the disabled toilet would be less favourable treatment in the future but was not less favourable treatment in the present. That is a confusing conclusion to follow in circumstances when there is no doubt that somebody without the protected characteristic would not have been told to act in the same way.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Taylor v Jaguar Land Rover 1304471/2018</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong><em>Taylor</em></strong>, the Claimant described herself as ‘gender fluid’ and ‘transitioning’ but made clear that she had no intention to undergo surgery. Whilst employed by the Respondent, she did not change her name to a female name. Her manager told her to use the disabled toilets instead of the women’s toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal found that the manager’s comment constituted direct gender reassignment discrimination. The reasoning of the Tribunal was simple: ‘a person who was not transitioning would not have been treated that way.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Tribunal commented that telling a transitioning person to use the disabled toilets is, at the very least, potentially offensive to them because it suggests that their protected characteristic equates to a disability. There also seemed to be implied criticism of an email from the Respondent informing the Claimant that she should use whichever toilets she felt comfortable using each day. The ET reflected that that put the onus on the Claimant to decide which toilets to use and to deal with any challenges made by colleagues who were unhappy with her choice.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The decision must be right. The comparison for the purposes of a direct discrimination claim must be with an individual in the same material circumstances as the Claimant but who was not transitioning. There was no doubt that an individual in those circumstances would not have been told to use the disabled toilets.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Discussion/thinking points</strong></p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><!-- wp:list-item --> <li><strong><em>Croft </em></strong>was decided before the Gender Recognition Act 2004 was passed. In <strong><em>Croft, </em></strong>the judgment of Lord Nicholls in <strong><em>Bellinger v Bellinger </em></strong>where he states, <em>‘Individuals cannot choose for themselves whether they wish to be known or treated as male or female. Self-definition is not acceptable’</em> is cited with approval. Given that self-ID, at least in Scotland, is now sufficient for an individual to obtain a Gender Recognition Certificate, there is an argument that <strong><em>Croft </em></strong>would be decided differently today.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The Equality Act is unclear when it comes to sex discrimination claims by transgender individuals. Once an individual has a Gender Recognition Certificate, they are to be treated for all purposes as a member of the acquired sex. So for example, a transgender woman with a GRC could undoubtedly bring a sex discrimination claim and rely upon her sex as a woman. Some may argue that the legal sex of a transgender woman without a GRC is male, and so a similar sex discrimination claim could not be brought. Others would point to <strong><em>A v Chief Constable of West Yorkshire Police [2004] UKHL 21 </em></strong>which held that a trans woman who was <em>‘visually and for all practical purposes indistinguishable from non-transsexual members of that gender’</em> was to be treated as a woman. The decision commented on the Gender Recognition Act, which was passed through Parliament at the time, stating: ‘<em>In policy terms, therefore, the view has been taken that trans people properly belong to the gender in which they live.’</em></li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>Critics of the Gender Recognition Act may well point out that the Act itself falls somewhat short of achieving that policy aim, given the criteria for obtaining a GRC, including a need for two medical reports from different doctors. Notably, one of those reports has to be from a specialist in gender dysphoria. In the 2021 census, 262,000 people in England and Scotland identified as transgender. At the time of this Article, according to the government’s official list, there were 77 gender dysphoria specialists in England and only 7 in Scotland.</li> <!-- /wp:list-item --> <!-- wp:list-item --> <li>The issue over entitlement to single-sex spaces is focused overwhelmingly on trans women accessing women’s spaces. There is virtually no discussion over trans men accessing men’s spaces. For a direct sex discrimination claim brought by a trans woman prevented from accessing a woman’s space, can the argument be made that the comparator should be a trans man trying to access a men’s space?</li> <!-- /wp:list-item --></ol> <!-- /wp:list -->

Mr Robert Cratchit v. Scrooge and Marley Limited

<!-- wp:paragraph --> <p>Charles Dickens’ <em>A Christmas Carol</em> features the most eminent of all unscrupulous festive employment relationships.&nbsp; That between Ebenezer Scrooge and Bob Cratchit.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The firm<em> Scrooge and Marley</em> is an employer like no other (though like many others at the time).&nbsp; Whilst the late Mr Marley no longer presides, his joint business partner, Mr Scrooge, continues to rule with an iron fist.&nbsp; And Bob Cratchit, doting father to Tiny Tim, is a loyal, patient clerk who finds himself confronted with a problematic working environment.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dickens’ iconic work centres on the reformation of Scrooge’s life through the visits of various Christmas ghosts, rather than any of his firm’s employment rights violations.&nbsp; The latter would have been surprising, given that employment relationships back in early Victorian England were governed by nothing more than an unwritten moral code.&nbsp; And even that moral code was ignored by most.<a href="#_ftn1" id="_ftnref1">[1]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Still, Christmas ghosts provide limited entertainment to employment lawyers.&nbsp; And the classic tale has been told and retold countless times.&nbsp; It is time for a different approach.&nbsp; Applying modern day employment law principles to <em>Scrooge and Marley</em>, what would Bob Cratchit’s claim look like?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Working conditions</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dickens’ description of the firm’s counting-house paints the picture of a workplace that is less than accommodating:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The door of Scrooge’s counting-house was open that he might keep his eye upon his clerk, who in a dismal little cell beyond, a sort of tank, was copying letters. Scrooge had a very small fire, but the clerk’s fire was so very much smaller that it looked like one coal. But he couldn’t replenish it, for Scrooge kept the coal-box in his own room; and so surely as the clerk came in with the shovel, the master predicted that it would be necessary for them to part. Wherefore the clerk put on his white comforter, and tried to warm himself at the candle; in which effort, not being a man of a strong imagination, he failed.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Regulation 7 of The Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) (the Workplace Regulations) provides that, during working hours, the workplace indoor temperature must be ‘<em>reasonable</em>’.<a href="#_ftn2" id="_ftnref2">[2]</a>&nbsp; Paragraph 61 of the HSE Approved Code of Practice and guidance assists on the meaning of reasonable in this context:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘61 The temperature in a workplace should normally be at least 16 degrees Celsius. If work involves rigorous physical effort, the temperature should be at least 13 degrees Celsius. However, these temperatures may not necessarily provide reasonable comfort, depending on other factors such as air movement, relative humidity and worker clothing. Temperature readings should be taken close to workstations, at working height and away from windows.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Dickens depicts a counting-house closer to 16 degrees Fahrenheit than Celsius.&nbsp; And Scrooge has failed to provide adequate local heating<a href="#_ftn3" id="_ftnref3">[3]</a>, or issue suitable clothing.<a href="#_ftn4" id="_ftnref4">[4]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Regrettably for Cratchit, Scrooge’s breach of the Workplace Regulations does not give rise to civil liability<a href="#_ftn5" id="_ftnref5">[5]</a> and in any event would not fall within the jurisdiction of the Employment Tribunal.&nbsp; However, breach of the Workplace Regulations could be used as evidence of Scrooge’s negligence in a personal injury claim if Cratchit was to become injured as a result of the cold.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It could alternatively form the grounds of a breach of the implied term that the working environment be reasonably safe.&nbsp; If Cratchit chose to resign as a result, he could argue constructive unfair dismissal under section 95 (1) (c) of the Employment Rights Act 1996 (ERA 1996) on the basis that the freezing temperatures were enough to repudiate the contract between he and the firm.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Threatened dismissal</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The book recounts of an incident which arose when Scrooge’s nephew came to visit the counting-house.&nbsp; The nephew having voiced to his uncle the virtues of Christmas spirit, Cratchit felt compelled to respond:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The clerk in the Tank involuntarily applauded. Becoming immediately sensible of the impropriety, he poked the fire, and extinguished the last frail spark for ever.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘“Let me hear another sound from you,” said Scrooge, “and you’ll keep your Christmas by losing your situation!’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Scrooge threatening the termination of Cratchit’s employment in such circumstances gives rise to a further breach of the implied term of trust and confidence and a further potential claim of constructive unfair dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case of&nbsp;<a href="https://uk.practicallaw.thomsonreuters.com/D-006-8588?originationContext=document&amp;transitionType=PLDocumentLink&amp;contextData=(sc.Default)&amp;ppcid=b2137dc87b94430e8fde8f08836bd9b6"><em>Horkulak v. Cantor Fitzgerald International</em> [2003] IRLR 756</a>&nbsp;illustrates how intolerable working environments may constitute a breach of the implied term of trust and confidence, and Crachit would certainly have a plethora of evidence, should he chose resign in response to Scrooge’s treatment of him at work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Further, if Crachit complained about working conditions and was sacked, he could make a claim of automatic unfair dismissal under section 103 ERA 1996 on the grounds that his dismissal was because he had made a protected disclosure and such disclosure was the principal reason for his dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Holiday</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For all of Scrooge’s bitterness, he does demonstrate one gesture of seasonal good-will in begrudgingly granting his employee a paid day of holiday to celebrate Christmas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“You’ll want all day tomorrow, I suppose?” said Scrooge.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“If quite convenient, sir.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“It’s not convenient,” said Scrooge, “and it’s not fair. If I was to stop half-a-crown for it, you’d think yourself ill-used, I’ll be bound?”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>The clerk smiled faintly.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“And yet,” said Scrooge, “you don’t think me ill-used, when I pay a day’s wages for no work.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, it becomes apparent that Scrooge does not make a habit out of granting leave:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>‘The clerk observed that it was only once a year.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“A poor excuse for picking a man’s pocket every twenty-fifth of December!” said Scrooge, buttoning his great-coat to the chin. “But I suppose you must have the whole day. Be here all the earlier next morning.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Evidently, Scrooge fails to afford his clerk the statutory minimum annual leave for full-time workers required by modern-day law.&nbsp; Full time workers are entitled to 28 days of leave by virtue of the combined effect of regulation 13 of the Working Time Regulations (WTR) 1998 (SI 1998/1833), which grants the first 20 days, and regulation 13A WTR 1998, which provides an additional 8 days.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>If Scrooge grants only one measly day of holiday each year, Cratchit can bring a claim in the Employment Tribunal seeking a declaration, alongside such compensation as the tribunal considers just and equitable in all the circumstances, having regard to Scrooge’s default in refusing to permit Cratchit to exercise his right, and any loss sustained by Cratchit as a result, per regulation 30 (3) and (4) WTR 1998.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Harassment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Scrooge has no issue voicing his opinions at work.&nbsp; When a charity stops by seeking donations for the poor, Scrooge retorts:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Are there no prisons?” asked Scrooge.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Plenty of prisons,” said the gentleman, laying down the pen again.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“And the Union workhouses?” demanded Scrooge. “Are they still in operation?”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>[…]</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Both very busy, sir.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“Oh! I was afraid, from what you said at first, that something had occurred to stop them in their useful course,” said Scrooge. “I’m very glad to hear it.”</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst such an exchange is likely to have made Cratchit squirm, it does not give rise to a claim.&nbsp; The outburst was not directed at Cratchit, and nor is the comment related to a protected characteristic on his part.&nbsp; Though Scrooge’s manner here could be enough to create a hostile working environment, Cratchit may have to let this one pass.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Discrimination by association</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It does not seem that Bob Cratchit could rely on a protected characteristic of his own with which to bring a discrimination claim, although his employer must still proceed with caution.&nbsp; Dickens reveals later in the book that Cratchit’s son, Tiny Tim, is disabled.&nbsp; This fact is revealed to Scrooge during his time spent with the Ghost of Christmas Present.&nbsp; From Christmas night forward, Scrooge has knowledge of Tim’s disability for the purposes of section 15(2) Equality Act 2010.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Cratchit may also be able to bring a claim of direct disability discrimination by association if he were able to establish that he was treated less favourably because he is linked or associated with his son’s disability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Given Scrooge’s propensity for outbursts about those less fortunate than he, it could also give rise to a potential claim of harassment, if such comments related, for example, to Tiny Tim’s disability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Summary</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst Bob Cratchit cannot bring a claim for breach of the Workplace Regulations, he enjoys strong prospects in a claim under the WTR 1998 for holiday pay, and if he chose to resign in response to Scrooge’s conduct, as understandably he might, a claim of constructive unfair dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>And that assessment is made following one Christmas eve night which forms the subject of the book’s opening.&nbsp; Doubtless there were many more infringements experienced by Cratchit during his employment at the firm which would give most modern-day employment lawyers much food for thought.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Though Cratchit may find himself struggling to argue for a time extension to bring any such claim, given the events of the book were set in 1843.<a href="#_ftn6" id="_ftnref6">[6]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Merry Christmas.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> is a pupil barrister at Parklane Plowden under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a>, <a href="https://www.parklaneplowden.co.uk/our-barristers/michael-james/">Michael James</a>, and <a href="https://www.parklaneplowden.co.uk/our-barristers/jim-hester/">Jim Hester</a>.&nbsp; He will be accepting instructions from April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> But not all Victorian employers were like Scrooge.&nbsp; A famous example of a contemporaneous employer who took a different approach to workers’ rights was the textile designer, William Morris.&nbsp; See his ‘Policy of Abstention’ (1887).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> 38 MPs this year called for the law to go further, bringing an early day motion calling for legislation which would limit maximum workplace temperatures to 30/27 degrees Celsius, depending on the nature of the work.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref3" id="_ftn3">[3]</a> Para 65 of the Guidance</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref4" id="_ftn4">[4]</a> Para 69 ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref5" id="_ftn5">[5]</a> Section 69 of the Enterprise and Regulatory Reform Act 2013</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref6" id="_ftn6">[6]</a> Limitation expires after 3 months and the bringing a claim 179 years out of time is unlikely to be granted an extension of time.</p> <!-- /wp:paragraph -->

£1.3 billion held by NHS for clinical negligence claims relating to Covid-19

<!-- wp:paragraph --> <p>The Covid-19 pandemic placed widely publicised unprecedented strains on the NHS and its resources.&nbsp; For many covid and non-covid patients this meant their appointments and treatment being routinely cancelled or delayed. For those patients who were able to be seen by a doctor, appointments were often conducted remotely by telephone or video.&nbsp;There is now a huge backlog of patients, with a reported 7.1 million people in the queue as of September 2022.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The feeling has always been that these sorts of issues would eventually have a meaningful impact on clinical negligence claims.&nbsp;However, the full impact is yet to be seen and is not entirely clear. A lot of individuals are perhaps only just becoming aware of the consequences for them now.&nbsp; &nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It was therefore interesting to see recent news articles confirm that for 2021/22 the NHS (which already pays out about £2.2 billion each year in compensation and legal fees each year) has set aside a further £1.3 billion in funding in anticipation of a flood of Covid-19 related claims.&nbsp;This is more than double the £500 million that was set aside in 2020/21.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>According to the reports £470 million has been held for claims relating directly to the treatment of Covid, £610 million has been held for indirectly related claims such as delayed and missed diagnosis cases (often relating to patients with cancer), and the remaining £220 million has been held for claims relating to the administration of vaccines and other matters. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The obvious conclusion to draw is that the NHS and NHS Resolution are now expecting to see a surge in these types of cases over the coming months.&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;</p> <!-- /wp:paragraph -->

REASONING WITH BELIEF: Reflecting upon the recent approach to ‘reasonable belief’ in whistleblowing cases

<!-- wp:paragraph --> <p>It is well established that a whistleblowing claim may only succeed if the whistleblower makes a ‘qualifying disclosure’.&nbsp; A claimant must satisfy the tribunal that they reasonably believed their disclosure (i) tended to show a breach of a legal obligation and (ii) was made in the public interest.<a href="#_ftn1" id="_ftnref1">[1]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst many whistleblowing cases turn on the causation of any alleged detriment, making out such a protected disclosure can, in and of itself, present several issues for claimants.&nbsp; In the recent case of <em><u>Martin v. London Borough of Southwark and Ors</u></em><a href="#_ftn2" id="_ftnref2">[2]</a>, the Employment Appeal Tribunal (EAT) examined one such issue: that of reasonable belief.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The doctrine of reasonable belief in a whistleblowing context was explored some 15 years ago by Wall LJ in <em><u>Babula v. Waltham Forest College</u></em><a href="#_ftn3" id="_ftnref3">[3]</a>:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘[I]<em>n my judgment, the word ‘belief’ in section 43B(1) is plainly subjective.&nbsp; It is the particular belief held by the particular worker.&nbsp; Equally, however, the ‘belief’ must be ‘reasonable’.&nbsp; That is an objective test.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Subjective belief and objective reasonableness are not mutually exclusive.&nbsp; Wall LJ opined that it was ‘[the claimant’s] <em>belief (which is inevitably subjective)</em> [that must be] <em>held by the Tribunal to be objectively reasonable.</em>’ <a href="#_ftn4" id="_ftnref4">[4]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>So, the test is twofold.&nbsp; First, whether a claimant held a subjective belief.&nbsp; Second, whether <em>that </em>subjective belief, given the facts known to <em>that</em> claimant, was reasonable by an objective standard.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Such an approach has been adopted throughout English law.&nbsp; Most recently in the now standardised dishonesty test, reformulated by the Supreme Court in <em><u>Ivey v. Genting Casinos Ltd t/a Crockfords</u></em>.<a href="#_ftn5" id="_ftnref5">[5]</a> &nbsp;Following <em>Ivey</em>, the court is asked first to enquire as to the subjective state of a person’s honesty, before considering whether that same state of mind was objectively honest.&nbsp; Indeed, a similar model has also been applied within the criminal courts in the context of self-defence.<a href="#_ftn6" id="_ftnref6">[6]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The two-stage test requires a level of nuance.&nbsp; And for good reason.&nbsp; Applying an objective standard alone fails to take into account the state of the claimant’s own mind at the time the disclosure was made.&nbsp; The tribunal can only fairly assess whether a given belief was reasonable by stepping into the shoes of the claimant, so that their words and actions during the making of the disclosure can be properly reconciled.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Martin</em>, the EAT had cause to re-emphasise the consequences of this approach. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Mr Martin, in his capacity as a teacher at a hospital school, grew concerned that he and his fellow staff were being required to work hours in excess of Directed Time<a href="#_ftn7" id="_ftnref7">[7]</a>.&nbsp; Martin disclosed the same to the head teacher by email:<a href="#_ftn8" id="_ftnref8">[8]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>I am looking at our working hours for teachers and seem unable to reconcile them to statutory guidance, and all my conservative calculations, clearly I may be missing something</em>’, Martin wrote.&nbsp; He went on: ‘<em>From my calculations the excess of directed time for each full-time teacher is in excess of 97.5 hours for this academic year 05/09/16-21/07/17, clearly I may be missing something. Please may we discuss this?</em>’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The issue was whether Martin reasonably believed he had disclosed information tending to show a breach of the legal obligation to follow the School Teachers’ Pay and Conditions Document.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is fair to say Martin adopted tentative, even provisional, wording.&nbsp; But was it fair, as the Employment Tribunal (ET) found at first instance<a href="#_ftn9" id="_ftnref9">[9]</a>, to say that Martin’s words amounted to an ‘<em>enquiry rather than a disclosure of information</em>’?&nbsp; The ET’s view was that ‘[it was] <em>clear from the wording that the purpose of the letter </em>[was]<em> to invite a discussion</em>’ and that he was ‘<em>not alleging that there was a breach of a legal requirement</em>.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On appeal, Tayler J held that the ET had erred in its approach.&nbsp; It had not applied the two-stages as referenced in <em>Babula</em>.&nbsp; The ET had taken Martin’s caution, by objective assessment, as an indication that he lacked the requisite certainty that Directed Time had been exceeded.&nbsp; The ET had approached the question of reasonable belief on a purely objective basis:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>‘<em>The tribunal did not consider what the claimant’s subjective belief was or whether that belief was objectively reasonable.</em>’ <a href="#_ftn10" id="_ftnref10">[10]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is, of course, unsurprising that Martin was cautious when flagging the issue.&nbsp; Most employees do not operate under a universal assumption that their employer is acting in breach of a statutory obligation.&nbsp; Discovery of such a breach may come as a surprise, often triggering self-doubt.&nbsp; A whistleblower’s words should be seen in this context; that requires a degree of subjectivity.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is also plain from Martin’s email that he had taken it upon himself to research the nature of the breach.&nbsp; He had conducted the necessary calculations and understood the lawful position.&nbsp; In other words, he came armed with information which tended to show the breach and disclosed that information to his employer.&nbsp; That he may have invited his employer to refute that same information did not undo his first act.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Yet, applying a blanket objective approach, the ET took Martin’s words ‘<em>clearly, I may be missing something. Please may we discuss this</em>?’ in their ordinary meaning, and out of the context originally intended by Martin himself.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Reasonable belief demands objective rationality, but the EAT’s decision in <em>Martin</em> is a worthy reminder that the facts known to, and particular beliefs of, the whistleblower in question must not be ignored.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/robert-allen-pupil/">Robert Allen</a> commenced pupillage in October 2022 under the supervision of <a href="https://www.parklaneplowden.co.uk/our-barristers/claire-millns/">Claire Millns</a>.&nbsp; Robert will be ready to take instructions from April 2023.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a id="_ftn1" href="#_ftnref1">[1]</a> Section 43B Employment Rights Act 1996</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref2" id="_ftn2">[2]</a> EA-2020-000432-JOJ</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref3" id="_ftn3">[3]</a> [2007] EWCA Civ 174 at [82]</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref4" id="_ftn4">[4]</a> [75] ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref5" id="_ftn5">[5]</a> [2017] UKSC 67</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a id="_ftn6" href="#_ftnref6">[6]</a> <em>R v. Gladstone Williams</em> [1987] 3 All ER 411</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a id="_ftn7" href="#_ftnref7">[7]</a> Directed time is when teachers are directed by their head teacher to be at work and available for work. The vast majority of publicly funded schools in England operate according to the School Teachers’ Pay and Conditions Document (STPCD), which states that a classroom teacher can only be directed by the headteacher to work for up to a maximum of 1,265 hours over 195 days of the year.</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref8" id="_ftn8">[8]</a> [16] of <em>Martin</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a href="#_ftnref9" id="_ftn9">[9]</a> [20] ibid</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"style":{"typography":{"fontSize":"12px"}}} --> <p style="font-size:12px"><a id="_ftn10" href="#_ftnref10">[10]</a> [18] ibid</p> <!-- /wp:paragraph -->

HXA v Surrey County Council and YXA v Wolverhampton City Council &#8211; a turning point in the scope of liability of public authorities for failing to protect children from abuse

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/may-martin/" target="_blank" rel="noreferrer noopener">May Martin</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The judgment of the Court of Appeal in <strong>HXA v Surrey County Council and YXA v Wolverhampton City Council [2022] EWCA Civ 1196</strong> is a guarded, yet potentially seismic, shift in the law relating to liability of public authorities for failing to protect children. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>THE FACTS</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Both <strong>HXA </strong>and <strong>YXA </strong>involve claims against local authorities for failing to protect children from suffering abuse at the hands of their parents. In <strong>HXA, </strong>Surrey County Council had been involved with the family for over 6 years. In that time, they had (amongst other things):</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Made a decision to obtain legal advice with a view to issuing care proceedings, but then subsequently not taken any action;</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>Made a decision not to investigate after the child made a report of sexual abuse; and</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>Made a decision to do ‘keeping safe’ work with the children and the family.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>In <strong>YXA, </strong>the local authority had an arrangement with YXA’s parents whereby YXA spent roughly one night a fortnight and one weekend every two months in foster care. The arrangement was made under section 20 of the Children Act 1989. The arrangement continued for approximately 18 months, during which there were increasing concerns about YXA’s treatment when in the care of his parents. YXA was subsequently accommodated full time under section 20 and a care order was made roughly two years later. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Procedural History</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Both claims were struck out at first instance. In <strong>HXA, </strong>Deputy Master Bagot QC decided that the case was virtually indistinguishable from <strong>Poole Borough Council v GN [2019] UKSC 25</strong> (in which, broadly, it was held that local authorities do not owe a duty of care in these circumstances)and so there was no real prospect of the claimants establishing a duty of care. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <strong>YXA, </strong>Master Dagnall concluded that no duty of care arose from the provision of accommodation under section 20 and so struck out the claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Both strike-out decisions were upheld by Stacey J. Stacey J noted that the actions of the local authorities were no more than the local authority ‘operating a statutory scheme’ and accordingly their actions did not create a duty of care. Stacey J held that the facts alleged in both cases were so closely analogous to <strong>Poole </strong>that the area can no longer be described as a developing area.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>THE LAW</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Children Act 1989</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Children Act 1989 imposes duties and confers powers upon local authorities and forms the basis of local authority involvement in the lives of children and their families. Under Section 17(1), local authorities have a general duty to safeguard and promote the welfare of children within their area who are in need.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There are two provisions that are particularly relevant for these cases.</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true} --> <ol><li><strong>Section 20 – </strong>this section relates to the provision of accommodation by the local authority. Under Section 20(1), the local authority has a duty to provide accommodation in certain circumstances (which are broadly where there is nobody else to provide the child with suitable accommodation). Under Section 20(4), the local authority has a power to provide accommodation for a child, even where someone else is able to, if the local authority considers that to do so would safeguard or promote the child’s welfare.</li><li><strong>Section 47 – </strong>this section deals with the local authority’s duty to investigate potential harm to a child. Under this section, where a local authority has reasonable cause to suspect that a child is suffering, or is likely to suffer, significant harm, then the local authority must make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Duties of care owed by local authorities</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first step in establishing a claim in negligence is to establish that the local authority owed a duty of care to the children. The law relating to the situations in which a duty of care is owed is complex and an examination of the relevant case law is beyond the scope of this article. For those wishing to undertake a more detailed analysis of how the law in this area has developed, the judgment of Lord Reed in <strong>Poole </strong>is a very helpful summary.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Broadly speaking, in cases where the claim relates to a failure to act to prevent harm, as opposed to actively causing harm, no duty of care is owed unless the case falls into one of a number of well-recognised categories. The category which is usually relied upon by claimants in these cases is the ‘assumption of responsibility’ category. It works as follows:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>The general rule is that A owes no duty to B to protect B from harm which is inflicted by C. A is perfectly entitled to stand back and allow C to cause B harm. The law does not require A to intervene to stop C.</li><li>However, if A assumes responsibility for protecting B from C,&nbsp; that will create a duty of care.</li><li>That duty means that A has to actively do something to protect B. A can no longer simply stand back and allow C to harm B.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>How does A assume responsibility to protect B from C? A has to undertake to perform some task or to provide some service to B, together with an undertaking that A will take reasonable care in doing that task or service. The undertaking can be express (A could say that he will take reasonable care) but it is more commonly implied, usually from the fact that it was foreseeable that B would rely upon A to take care in doing the task or service.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>How does this apply to local authorities and children? In <strong>Poole, </strong>Lord Reed considered that nothing the local authority had done amounted to an assumption of responsibility towards the children. He concluded that the local authority’s investigating and monitoring, the allocation of a social worker, making the children subject to ‘child in need’ plans, performing an assessment under section 47, and making the children subject to child protection plans did not create an assumption of responsibility.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>COURT OF APPEAL DECISION IN HXA AND YXA</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Should the claims have been struck out?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Court of Appeal overturned the decision to strike out the claims. At [92], Baker LJ (giving the sole judgment) makes clear that the circumstances in which an assumption of responsibility arise is an intensely factual question that can only be answered on a case-by-case basis. He states at [100] that this is still an evolving area of the law and the ramifications following <strong>Poole </strong>are still being worked through. He notes at [101] that identifying whether or not there has been an assumption of responsibility may be a complex exercise in a case where the local authority has been involved over a number of years.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For those reasons, the Court of Appeal concluded that it would be wrong to strike out a claim before the evidence has been heard. There is further guidance given at [105] that the line between those cases where there has been an assumption of responsibility, and those cases where there has not, will only be developed through decisions reached after full trials.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In what circumstances will an assumption of responsibility arise?</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>As well as dealing with the question of strike out, the judgment goes on to discuss situations in which a local authority may have assumed a responsibility towards a child. Baker LJ is clear that <strong>Poole </strong>is not authority that an assumption of responsibility only arises in situations where the local authority has obtained a care order in relation to a child.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Section 20 accommodation</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first situation that Baker LJ addresses is in relation to ‘looked-after children’ i.e. children in care and children being provided with accommodation under section 20. Baker LJ concludes that an assumption of responsibility in relation to children accommodated under Section 20 is <em>‘not necessarily confined to the actual periods when the child was being accommodated.</em>’ Even for children who are only accommodated for a short period of time, the responsibility of the local authority may extend beyond the specific period of accommodation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The consequences of Baker LJ’s comments in relation to section 20 are not entirely clear. He gives an example of a child who, during a period of accommodation under section 20, informs the local authority that he is subject to sexual abuse at home. Baker LJ notes that the local authority’s duty to protect the child would continue after the end of the period of accommodation. Baker LJ notes that if the local authority simply returned the child home, it would be in breach of its statutory duty. So far, uncontroversial. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But Baker LJ goes on. He states that in such circumstances, the conduct of the local authority may amount, on certain facts, to ‘something more’<a href="#_ftn1" id="_ftnref1">[1]</a> so that the assumption of responsibility that arises therefrom may give rise to a duty of care at common law.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>When we look closer at this example, and in particular the reference to the ‘something more’, Baker LJ seems to suggest that accommodating a child under section 20 could, by itself, give rise to an assumption of responsibility. In the example given by Baker LJ, the local authority has done nothing more than accommodate the child. Whilst Baker LJ refers only to the possibility of an assumption of responsibility ‘on certain facts’, it not clear why he has chosen that particular example if not to suggest that a duty of care would arise upon those facts.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>At [102] Baker LJ applies the principle to the facts of <strong>YXA. </strong>He states, ‘<em>I consider it is certainly arguable that an assumption of responsibility may arise when a child is voluntarily accommodated in respite care as occurred in the case of YXA. He was accommodated with the same carers under a regular programme of short breaks or respite care because of concerns about his welfare in the care of his parents. He thus became a looked-after child whose welfare the local authority was under the statutory duty to safeguard and protect. I do not agree with the interpretation preferred by the master and the judge that this was merely an assumption of responsibility leading to a duty of care in relation to the accommodation itself. the duty to safeguard and protect his welfare was not necessarily confined to the limited period when the child was accommodated…In the case of YXA, therefore, I conclude that a local authority accommodating a child under section 20 is capable of amounting to ‘something more’ so as to give rise to an assumption of responsibility by the local authority.’</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This conclusion lends support to the suggestion that simply accommodating a child under section 20 can, in certain circumstances (potentially in YXA’s circumstances) give rise to an assumption of responsibility. That is significant. <a id="_ftnref2" href="#_ftn2">[2]</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Cases where a local authority takes, or resolves to take, a specific step to safeguard a child which amounts to an assumption of responsibility</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The second situation discussed by Baker LJ is where the local authority decides to undertake or commission a specific piece of work to assess the level of risk and/or protect a child from a particular type of harm. This is plainly a reference to the case of <strong>DFX </strong>where the local authority commissioned a psychology report to assess the risk of harm to the child, and it was held that such an act did not create a duty of care on the part of the local authority.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Baker LJ questions two elements of the decision in <strong>DFX</strong>:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Whether it was right to conclude that the commissioning of the report was for the local authority’s benefit and not for the benefit of the child.</li><li>Whether it was right to say that it was not reasonably foreseeable that the child would rely upon the local authority to exercise reasonable care and skill when deciding whether to start care proceedings.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The relevance of those doubts raised by Baker LJ is that one recognised category of cases where a duty of care is owed to the child is where a local authority involves a specialist to provide an assessment, and that specialist can be said to be providing a service not just to the local authority, but to the child (or the child’s parents) themselves<a href="#_ftn3" id="_ftnref3">[3]</a>. Such a category has (so far) been confined to an educational context.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, if Baker LJ is right, and a psychological report obtained by social services could be said to be commissioned for the benefit of the child, the category could be extended beyond the educational context into the social care context. It would allow claimants a different avenue by which to establish that there has been an assumption of responsibility towards them.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Looking more broadly at Baker LJ’s comments, two features stand out.</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>Baker LJ refers to a ‘decision to undertake or to commission a specific piece of work to assess the level of risk’. On one reading, although it would be an extraordinary extension of the law, that could include all cases where the local authority makes enquiries under Section 47. Section 47 requires a local authority to ‘make such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare.’ In undertaking a Section 47 investigation, is the local authority not deciding to undertake a specific piece of work to assess the level of risk to the child?</li><li>Baker LJ refers not only to situations where the local authority actually takes a specific step to safeguard a child but also to situations where the local authority ‘resolves to take’ such a step. A frequent issue in cases of this nature are that the local authority makes a decision about a particular action to be taken, and then subsequently fails to take it. Under the law as understood following <strong>Poole, </strong>claimants would be unable to establish a duty of care in such cases precisely because the local authority had not done anything (as opposed to doing something negligently). Baker LJ’s statement appears to suggest that a duty of care could arise merely from the act of deciding to take a step, even if that step is subsequently not undertaken.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>At [103], Baker LJ applies the principle to <strong>HXA. </strong>He notes that the decision to seek legal advice with a view to initiating care proceedings and to carry out a full assessment could amount to an assumption of responsibility. Further, he states that the agreement to carry out keeping safe work could amount to ‘something more’ so as to amount to an assumption of responsibility. Again, these are extraordinary statements which have the potential to significantly widen the scope of public authority liability in these cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>COMMENT</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The first point to note is that the Court of Appeal expressly stated it was not laying down any guidance in relation to the circumstances in which a local authority assumes responsibility so as to give rise to a duty of care. That, according to Baker LJ, is a question which <em>‘can only be answered definitely on a case by case basis by reference to the specific facts of each case.’ </em>The judgment does not mean that a duty of care will be owed in any or all cases such as <strong>HXA </strong>and <strong>YXA </strong>moving forwards. All that the judgment does, strictly speaking, is conclude that the situation is not so unarguable from the point of view of a claimant that these cases should be struck out.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Despite that, it must be said that the decision and (more importantly) the reasoning is a substantial departure from <strong>Poole. </strong>Under <strong>Poole, </strong>the broad position was thought to be that nothing short of the making of a care order would amount to an assumption of responsibility. Section 47 investigations, care plans, child protection plans, section 20 accommodation etc. was not sufficient. <strong>HXA </strong>and <strong>YXA </strong>changes the landscape.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is noticeable that Baker LJ distinguishes <strong>Poole </strong>from <strong>HXA </strong>and <strong>YXA. </strong>He does so on the basis that <strong>Poole </strong>was, for all intents and purposes, not a true failure to remove case. It was a case about children being harassed by their neighbours. That is not a situation which the Children Act was designed to deal with. I anticipate that all claimants moving forwards will seek to distance themselves from <strong>Poole </strong>in a similar manner. I do wonder whether the unique facts upon which <strong>Poole </strong>was decided leave the door open for another Supreme Court decision to revisit this area. The principle of an assumption of responsibility is almost certainly too embedded into the law for there to be any significant change, but it is definitely open to criticism on the basis that the cases from which it developed (e.g. <strong>Hedley Byrne v Heller</strong>) bear no resemblance to the context of local authority care cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>WHAT DOES THIS MEAN?</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Moving forward, there are 3 primary take-aways from the decision:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>It should not be the general practice for cases of this nature to be struck out on the basis that there is no duty of care owed. These cases need to proceed to full trials. This may have an effect on the approach that local authorities take to defending and/or settling such cases.</li><li>This is a developing area of law in which this judgment hints at a significant expansion in the scope of duties owed by public authorities to children in these types of cases.</li><li>There will be many more decisions in this area as the precise line between an assumption of responsibility and no assumption of responsibility is worked out. One case to note is the case of <strong>Champion v Surrey County Council, </strong>in which HHJ Roberts refused to strike out the claims, which is due to be heard by the Court of Appeal later this year.</li></ol> <!-- /wp:list --> <!-- wp:separator --> <hr class="wp-block-separator has-alpha-channel-opacity"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p><a href="#_ftnref1" id="_ftn1">[1]</a> The reference to ‘something more’ arises out of the judgment of Stacey J in the High Court decision on <strong>HXA </strong>and <strong>YXA. </strong>Stacey J examined the authorities on assumption of responsibility, noting that the mere fact that a public authority is operating within a statutory scheme does not, of itself, generate a common law duty of care. Stacey J went on, ‘Whether a duty of care is generated by an assumption of responsibilities depends upon whether there is, putting it colloquially, ‘something more’: either something intrinsic to the nature of the statutory function itself which gives rise to an obligation on the defendant to act carefully in its exercising that function, or something about the manner in which the defendant has conducted itself towards the claimants which gives rise to a duty of care.’</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="#_ftnref2" id="_ftn2">[2]</a> It is even more significant when we return to the decision of Stacey J in the High Court. She notes that a duty of care arises when a care order is made because at that point the local authority has parental responsibility for the child, which is the ‘something else’ sufficient to amount to an assumption of responsibility. In section 20 cases, the local authority does not have parental responsibility for the child. What, then, is the something more? Baker LJ seems to be suggesting that the provision of accommodation alone is sufficient for an assumption of responsibility.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn3" href="#_ftnref3">[3]</a> See <strong>Phelps v Hillingdon London Borough Council [2001] 2 AC 619</strong></p> <!-- /wp:paragraph -->

Compensation for travellers in the summer of discontent

<!-- wp:paragraph --> <p>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/craig-moore/" target="_blank" rel="noreferrer noopener">Craig Moore</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>There are two enduring images of the ‘winter of discontent’ in 1979: piles of uncollected rubbish on the streets and striking grave diggers leaning on unused shovels. What is rapidly becoming known as ‘summer of discontent’ in 2022 will also be remembered for two scenes. The first is a sea of weary passengers at airport terminals, waiting hours for their plane to depart – or not at all in many cases. The second is a seemingly endless line of stationary cars and lorries queueing on the roads into Dover and Folkestone. The chaos at airports and ports begs the inevitable question: can travellers affected by the disruption claim compensation? &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Package Holidays</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This year, more than any other, the prudent traveller will have booked a ‘package’ holiday with the protection provided by <a href="https://www.legislation.gov.uk/ukdsi/2018/9780111168479/contents" target="_blank" rel="noreferrer noopener">The Package Travel and Linked Travel Arrangements Regulations 2018</a> (The PTR). The PTR replaced the Package Travel <em>etc</em> Regulations 1992 which had not kept up with the way in which holidays are marketed, put together, and bought on the internet. The PTR apply where a combination of at least two different types of travel service for the purpose of the same trip are provided by one trader, or through a single point of sale (<em>e.g.</em> flights and accommodation), typically through a website.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Under the PTR, a tour operator is liable to reimburse the traveller and/or pay compensation for the improper performance of the holiday contract by one of the suppliers of services under the contract (e.g. an airline or hotel). If a package holiday is cancelled the traveller is entitled to a full refund. Often, the tour operator will first offer alternatives such as re-booking the same holiday at a future date, a different holiday, or vouchers to be used later. The traveller can accept such an option, if he or she wishes, but the entitlement to a full refund is the starting point and must be paid within 14 days of the cancellation date if that is what the traveller requests. That security is strengthened by the knowledge that the tour operator is liable to pay the refund, even if the issue that caused the holiday to be cancelled was the fault of another party involved in one of the components of the package, usually an airline.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Another common scenario in the context of a package holiday is that the flight is cancelled, but not the entire holiday. In those circumstances, the consumer is entitled to a suitable alternative flight and, in default of that, a full refund.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>ABTA and IATA</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>An extra layer of protection that a traveller has is that <a href="https://www.abta.com/" target="_blank" rel="noreferrer noopener">ABTA</a> (in the case of rail, cruise only, and self-drive holidays that are booked with an ABTA member), and <a href="https://www.iata.org/" target="_blank" rel="noreferrer noopener">IATA</a> (in package holidays that include flights), will step in if the tour operator goes into administration, arrange repatriation if necessary, and pay financial compensation that proves to be irrecoverable from the tour operator.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Air travel</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>But what happens where an independent traveller books the various components of the holiday in such a way that the PTR do not apply, or a flight only? Air travellers have had a statutory entitlement to compensation since 2005 under EU Regulation 261/2004. The Regulation was written into UK domestic law on 31<sup>st</sup> December 2020, at the end of the Brexit transition period. This means that the rights of air travellers to claim compensation for cancelled and delayed flights have not altered, despite the UK leaving the EU. Where a flight on a UK or EU based airline is cancelled, the passenger is entitled to a full refund, or a replacement flight. Additionally, compensation is payable where the airline informs the passenger of the cancellation 14 days or less prior to the departure date. The level of compensation depends on the flight distance and whether a replacement flight is offered. The flight must depart from an airport from inside the UK or EU, even if the arrival airport is outside the UK or EU. If the departure airport is outside the UK or EU, but flies to an airport inside the UK or EU, the Regulation also applies so long as the airline is UK or EU based. For example, a flight from Cape Town to London on a KLM flight would be covered, but not one operated by Doha-based Qatar Airways.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The flight must be delayed by three hours or more in its scheduled time of arrival – calculated to the time when the aircraft doors are opened – to become actionable. The compensation scheme under the Regulation is, however, self-contained and although the air carrier is required to provide welfare at the airport (food, drink and in certain circumstances accommodation), the compensation does not extend to other wasted costs associated with the holiday (<em>e.g.</em> cancelled or reduced hotel accommodation at the holiday resort).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In flight delay and late cancellation cases, airlines often seek to avoid compensation for a flight delay by arguing that it was caused by ‘extraordinary circumstances’ beyond their control. Tour operators and airline companies are not responsible for the recruitment of baggage handlers, security, and other ground-side staff responsible for processing passengers. On the other hand, the very significant increase in bookings this year means that the delays and disruption at airports were arguably a foreseeable consequence of insufficient staffing at airports. Claimant passengers will also no doubt argue that a failure to re-hire staff in time for the busy spring and summer holiday period is not a sudden, unexpected event akin to an erupting volcano, or an extreme weather event. It will be interesting to see how these arguments play out, and whether any consistency in decision-making emerges given the disparate nature of small claims litigation conducted across the country. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is therefore wise air travellers, particularly independent ones, who take out insurance cover against the risk of cancellation and flight delays, as well as illness or other unforeseen events that may prevent travel altogether. With increasing rates of covid infection, the risk of losing an expensive investment further underlines the need for all travellers to take out adequate insurance cover. According to ABTA, 8.6 million holidaymakers did not have travel insurance for their summer holiday in 2019, the last meaningful one prior to the pandemic.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Independent travellers by road</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>For independent holidaymakers who find themselves stuck for hours on a Kent motorway, there is little, if any, legal protection. The cross-Channel ferry companies and Euro-Tunnel are powerless to accelerate a passport checking process that is now required because of the United Kingdom’s post-Brexit status as a Third Country in its relationship with the EU. Unlike flights, it does not appear as if ferries are being cancelled and anecdotal evidence suggests that most travellers do eventually board a ferry rather than turn round and go home, albeit much later than the one they were originally booked on. A travel insurance policy will typically provide compensation for delays caused by certain specified <em>“covered reasons”</em> including a travel carrier delay. A leading travel insurance provider specifies a minimum threshold of 12 hours’ delay and imposes a cap of up to £1,000 on the amount payable. Further, subject to the terms of the policy, an insurer may argue that the delays in travellers leaving Kent are not being caused by travel carriers (the ferry operators and Euro-Tunnel), but by delays in processing passengers by border control authorities which are not a <em>“covered reason”</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Conclusion</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The moral of the story is clear; a drizzly week building sandcastles with them in Scarborough is likely to be less stressful – and certainly less expensive – than a Tolstoyan length journey by car with young children to the sunny South of France. A package holiday that comes under the umbrella of the PTR and is ATOL or ABTA protection provides the traveller with the greatest level of financial security in the event of cancellation, interruption, or delay. Irrespective of their travel arrangements, and especially if they do not book a package holiday, any reputable tour operator and travel agent will firmly advise travellers to invest in the relatively modest cost of insurance cover. Despite the risk of having to argue over the small print of the terms about the cause of a delay, it is the ‘big ticket’ items, namely cancellation and interruption of a holiday, personal accident, medical emergencies, and personal liability, where the major financial protection for travellers - and peace of mind - lies.&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/craig-moore/" target="_blank" rel="noreferrer noopener">Craig Moore </a>specialises in travel law and claims arising out of accidents abroad. He has a wealth of experience advising and acting for both claimants and defendants in personal injury claims, spoilt holidays, illness claims, flight delay claims, and breaches of holiday contracts.&nbsp;</p> <!-- /wp:paragraph -->

Relevant Considerations in a s15 Equality Act 2010 Claim

<!-- wp:paragraph --> <p><strong>Written by </strong><a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/" target="_blank" rel="noreferrer noopener">Andrew Sugarman</a> and <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong><em>Department for Work and Pensions v Boyers</em> [2022] EAT 76</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT found that the dismissal procedure was a relevant factor in assessing proportionality in claims for discrimination arising out of a disability.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background Facts</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant was employed by the Department for Work and Pensions.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>She was disabled due to chronic migraines and anxiety.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant felt she was being harassed and bullied by a colleague which caused her stress and increased the frequency of her migraines. She requested on several occasions to move away from the colleague. However, the Respondent refused her requests.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In 2017 the Claimant was absent for a year due to sickness, save for a short period when she undertook a trial period in an alternative role, in a different location. The Respondent deemed the trial unsuccessful.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In January 2018 the claimant was dismissed. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant brought various complaints, including one for discrimination arising from disability under s15 of the Equality Act 2010.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First Instance Decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Respondent submitted its legitimate aims for the purposes of s15(1)(b) were: 1) protecting scarce public funds/resources and 2) reducing strain on other employees resulting from the Claimant’s absence.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ET accepted these aims were legitimate. However, it concluded the Respondent had not acted proportionately in dismissing the Claimant. It found more could have been done to assist the Claimant back to work. In particular, it considered the manner in which the work trial was conducted was flawed, as was the procedure that led to dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant therefore succeeded in her s15 claim and in addition her unfair dismissal claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>First Appeal</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Respondent appealed against the s15 finding on the basis the ET had not properly balanced the discriminatory impact on the Claimant with the aims of the Respondent. It argued the ET had solely focused on the process leading to dismissal.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The EAT upheld the appeal. It found the ET had focused on the process by which the Respondent came to dismiss and the actions and thought processes of the Respondent’s managers, rather than objectively assessing the needs of the Respondent in the context of its legitimate aims. The case was remitted to the ET to reconsider proportionality.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>ET’s second judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The ET conducted the balancing exercise again and reached the same conclusion as it had previously.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It again factored the dismissal procedure into its findings. In particular, it did not consider it reasonably necessary to move to dismissal at the time the Respondent did.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Appeal against ET’s second judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>By the time of the appeal, there were 3 live grounds of appeal:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>Grounds 1 and 3 – the ET erred when considering proportionality by factoring in the procedure leading to the Claimant’s dismissal. The Respondent submitted the focus should have solely been on the outcome.</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>Ground 2 – the ET, in the absence of a separate claim for failure to make reasonable adjustments relating to the Claimant’s place of work, had wrongly imported such a duty in finding that it ought to have investigated deploying the &nbsp;&nbsp;Claimant to different duties in a different workplace, given she refused to return to her contracted workplace. It argued the ET should have limited itself to consideration of the Claimant’s <em>contracted</em> duties and place of work.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Judgment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>With regard to grounds 1 and 3 the EAT concluded, whilst the focus should be on whether the outcome – dismissal – is justified outcome, it remained open to the ET to weigh in the balance the procedure by which that outcome was achieved.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It also concluded that it would be more difficult for the Respondent to show that it acted proportionately if:</p> <!-- /wp:paragraph --> <!-- wp:list --> <ul><li>the Respondent adduces no evidence on how its decision makers thought their actions would in fact serve legitimate aims relied upon;</li></ul> <!-- /wp:list --> <!-- wp:list --> <ul><li>it adduces no evidence on how, as part of the process culminating in dismissal its decision makers considered other, less discriminatory, alternatives to dismissal.</li></ul> <!-- /wp:list --> <!-- wp:paragraph --> <p>The EAT determined that, without properly evaluating the work trial the Claimant underwent at the different workplace to decide whether it was successful or not, the Respondent could not show that dismissal was appropriate or reasonably necessary.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In respect of ground 2, the EAT found that it would seriously undermine the protection afforded to disabled people in s15 if the assessment of proportionality could not extend beyond terms of contract. It is right that a prior failure to comply with the duty to make reasonable adjustments may be material to the question of whether a dismissal is disproportionate (as it was <strong>City of York Council v Grosset</strong>). However, it does not follow that the converse is true; that no dismissal can be disproportionate where no reasonable adjustment can be made.&nbsp; &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Comment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Boyers – a decision of the President of Employment Tribunals in England and Wales - &nbsp;provides a useful reminder that there is perhaps more of an overlap between unfair dismissal law and discrimination law than might first be assumed. Whilst the focus must be ultimately be on whether the discriminatory act which is pleaded is justified or not, and thus the focus must be on the outcome, matters of procedure can also be relevant to a s15 claim, not just an unfair dismissal claim.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The case is also helpful to those assisting respondents prepare their claims. There were important evidential gaps in this case which made it difficult to show dismissal was proportionate. Witnesses ought to deal with how and why they concluded the legitimate aims were furthered by the measure in question. They should also deal with what consideration they gave to alternative less discriminatory measures and explain why they were not adopted.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Authors</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/andrew-sugarman/" target="_blank" rel="noreferrer noopener">Andrew Sugarman</a> is a leading employment barrister. <a href="https://www.parklaneplowden.co.uk/our-barristers/sophie-watson/" target="_blank" rel="noreferrer noopener">Sophie Watson</a> is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers. She is now accepting instructions.</p> <!-- /wp:paragraph -->

&#8216;Private law fact finding hearings: the new approach post-Re H-N&#8217;, <em>Family Law</em> published an article by Louise McCallum

<!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/louise-mccallum/" target="_blank" rel="noreferrer noopener"><strong>Louise McCallum</strong></a> wrote an article for <em><a href="https://www.familylaw.co.uk/" target="_blank" rel="noreferrer noopener">Family Law</a></em>, in the forthcoming July 2022 edition. </p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The article considers the Family Court’s evolving approach to decisions as to whether to direct fact-finding hearings in private law cases, following the pivotal decision in&nbsp;<em>Re H-N</em>&nbsp;and subsequent High Court decisions, most recently in&nbsp;<em>K v K&nbsp;</em>[2022] EWCA Civ 468. The article also reflects on the likely impact of the most recent Guidance published by the President of the Family Division, ‘<em>Fact-Finding hearings and domestic abuse in Private Law proceedings.’&nbsp;&nbsp;</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The article considers the Court’s ongoing efforts to achieve the best balance between giving appropriate recognition to the impact of domestic abuse, whilst ensuring that fact finding hearings are directed only in cases where this is necessary and proportionate. The recent Guidance emphasises that the fundamentals to the decision as to whether to direct a fact-find hearing are “relevance, purpose and proportionality.” The article also considers the developing approach of the Family Court to case management where there are allegations of domestic abuse and coercive control and how such cases should now be best presented to the Court. It is anticipated that advocates can expect to see an increased and scrupulous focus upon whether a fact-finding hearing is indeed required on the facts of their particular case, accompanied by rigorous case management.&nbsp;&nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A link to the published article can be found&nbsp;<a href="https://www.familylaw.co.uk/news_and_comment/private-law-fact-finding-hearings-the-new-approach-post-re-h-n" target="_blank" rel="noreferrer noopener">here</a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a href="https://www.parklaneplowden.co.uk/our-barristers/louise-mccallum/" target="_blank" rel="noreferrer noopener">Louise</a> is a highly regarded barrister and a specialist family law practitioner, practising in public and private law children work. She is one of the leading juniors practising on the North Eastern Circuit in this field, being given the distinction of a Band 1 rating in the latest <em>Chambers and Partners</em> Guide.&nbsp;</p> <!-- /wp:paragraph -->

Dementia risk and provisional damages. A recent decision

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/tom-vonberg/" target="_blank" rel="noreferrer noopener">Tom Vonberg</a></strong>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The decision of Mrs Justice Hill in <a href="https://www.bailii.org/ew/cases/EWHC/QB/2022/924.pdf" target="_blank" rel="noreferrer noopener"><em>Mathieu v Hinds and Aviva Plc</em></a> [2022] EWHC 924 (QB) addressed a number of difficult quantum matters which are common to brain injury litigation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Background</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was not a case in which the parties had managed a great deal to narrow the issues – at trial the Claimant’s pleaded claim was in excess of £33 million whereas the counter schedule admitted £49,500. In the event, the Judge awarded a little over £3 million. &nbsp;</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>This was in the context of a Claimant who had been a 29-year-old studying for a degree in Fine Art when he was, as a pedestrian, struck by the Defendant’s moped and for which liability was admitted. His severe head injury encompassed subarachnoid haemorrhage, subdural haemorrhage and frontal lobe contusions. The Claimant thereafter suffered the typical panoply of neurocognitive issues and which were broadly agreed by the neuropsychological experts for each side.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Unsurprisingly, the substance of the quantum disagreement was reflected in the approach to the future loss of earnings claim. Post-accident the Claimant had developed a successful artistic career such that the Judge found as fact that he had the potential to command six figure sums per painting sold. The loss of earnings claim was essentially based on the shortfall caused by his loss of productivity (in terms of paintings created) consequent upon his neurological symptoms.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In arriving at a lifetime multiplicand to reflect future lost sales, the Judge admirably navigated the witness evidence of fellow artists, gallery owners and art experts rather than succumb to the Defendant’s submission that there were so many uncertainties surrounding earnings potential that the only appropriate award was one made pursuant to <em>Blamire v South Cumbria Health Authority</em> [1993] PIQR Q1.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The provisional damages claim</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the real interest of the decision to this writer was the Judge’s approach to the Claimant’s provisional damages claim and specifically that in relation to the claimed elevated risk of dementia as a result of the traumatic brain injury.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whereas the elevated epilepsy risk consequent upon TBI is often uncontroversial in litigation, and indeed agreed upon by neurological experts, the same cannot be said of dementia and the causal link with a TBI. Nevertheless, it has become more or less <em>de rigueur </em>for Claimant neurological evidence to identify that the risk exists hand in glove with the established risk of epilepsy.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>One of the practical issues for Claimant advisors is the degree, if any, to which the existence of an apparent dementia risk should be weighed in the balance when it comes to settlement and / or a claim for provisional damages. Nor has the dearth of reported decisions on the causation issues made that task any easier.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>Mathieu </em>is therefore a welcome and thorough first instance decision of the High Court at which well respected legal teams set out the competing arguments.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>To recap, Section 32A of the Senior Courts Act 1981 underpins the Court’s jurisdiction to make a provisional damages award where:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center"><em>There is proved or admitted to be a chance that some definite or indefinite time in the future the injured person will, as a result of the act of omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Practitioners are well aware that the Claimant must meet a three-stage test if that jurisdiction is to be exercised – as first set out in <em>Wilson v Ministry of Defence</em> [1991] ICR 595 and subsequently approved by the Court of Appeal in <em>Curi v Colina</em> [1998] EWCA Civ 1326. This requires that the Claimant establish:</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"1"} --> <ol type="1"><li>That there is a (more than fanciful) chance he / she will develop the disease or deterioration in question;</li><li>That the disease or deterioration in question is serious; and</li><li>That the Court should exercise its discretion to make a provisional damages award.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>There is a welter of case law on all three issues surrounding the measure of chance, the meaning of <em>“serious”</em> and the circumstances in which the Court should exercise its discretion as opposed to making a once and for all award of damages.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>However, the pressing issue in claims for provisional damages in which the trigger event is dementia is that relating to proof of medical causation.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Whilst the chance of developing the condition need only be small, the Claimant must also prove on the balance of probabilities the causal link with traumatic brain injury. To this end, while the dementia risk is now routinely advanced in such cases, to the writer’s knowledge there has not, until this case of <em>Mathieu</em>, been a fully reasoned judgment on causation as it relates to TBI and dementia.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the Claimant’s case, the parties’ respective neurology experts who were Dr Richard Orrell for the Claimant and Dr Oliver Foster for the Defendant readily agreed in the joint statement that an elevated epilepsy risk existed of between 5 to 8%. However, their co-operation did not extend to the dementia issue.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The academic papers cited by Dr Orrell drove him to the view that the Claimant’s risk of developing dementia caused by the traumatic brain injury was substantially higher than the risk to the background uninjured population – potentially 2 to 4 times higher depending on the age the condition manifested. The papers and studies relied upon were those commonly cited by expert neurologists and included Agrawal and Ford (July 2018)<a id="_ftnref1" href="#_ftn1"><sup>1</sup></a>, Barnes et al (May 2018)<a id="_ftnref2" href="#_ftn2"><sup>2</sup></a>,&nbsp; Fann et al<a id="_ftnref3" href="#_ftn3"><sup>3</sup></a> and Nordstrom and Nordstrom<a id="_ftnref4" href="#_ftn4"><sup>4</sup></a>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Interestingly, in addition to those familiar studies, Dr Orrell also cited a recent 2019 paper by Professor David Sharp and Dr Neil Graham<a id="_ftnref5" href="#_ftn5"><sup>5</sup></a> - two well respected and academically active neurologists at Imperial College London. Their paper claims an established link between TBI and <em>“progressive neurodegeneration and dementia”</em> and that the <em>“all-cause dementia risk is increased by around 1.5 times”</em> in cases of TBI. As was evident from her Judgement, this paper piqued the Judge’s interest but ultimately, absent the authors being called as witnesses in the trial, she did not find it tilted the balance in favour of the Claimant.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>On the other hand, the broad thrust of Dr Foster’s position for the Defendant was that the literature was a <em>“mess”</em> and whilst he accepted that there were studies to suggest an association between TBI and dementia, he contended that this did not necessarily imply medical causation. Dr Foster also highlighted some of the criticisms regularly made of the research to date which contended that there is a causal link - including criticism of retrospective analysis, observer bias and, fundamentally, the basis on which dementia is said to have been diagnosed in patients.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The Judge’s decision</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>These were the arguments that found favour with Mrs Justice Hill. With reference to a meta-analysis of 68 research papers by Hicks et al<a id="_ftnref6" href="#_ftn6"><sup>6</sup></a> which was published relatively recently in December 2019 the Judge identified in fairly frank terms, at paragraph 334, that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph {"align":"center"} --> <p class="has-text-align-center"><em>The Hicks teams’ conclusions surely cast significant count on those previous studies which found an association between single TBI and dementia. This is not to resort to “nihilism” as Mr Huckle said Dr Foster was doing, but to recognise that the most recent meta-analysis is itself leaving open the question of whether there is a sound scientific basis for the assertion that a single TBI can cause dementia.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>And with that, the Judge declined to find that <em>“on the current state of the science”</em>, the Claimant had established on the balance of probabilities that there was a more than fanciful chance that his brain injury would lead to him developing dementia.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The Claimant in <em>Mathieu</em> may well have lost on this issue, but what is interesting from a medico - legal perspective is that the science is in a state of development such that it is probably just a matter of time before a different Claimant runs this argument again and likely with a better quality of medical literature available to them.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In her Judgment, paragraph 333, Justice Mills highlighted that the Hicks team had expressed their hope that more robust studies in the future would <em>“help the research community in finally answering the question as to whether a TBI does indeed increase the risk of [Alzheimer disease]”</em>. Likewise the Judge speculated whether the authors of the Graham and Sharp paper were likely to take issue with the findings in Hicks as to the inconclusive nature of the causation evidence. All of which is to underscore the present uncertainty in the medical community and, therefore, amongst injury lawyers.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In truth, when faced with what even Dr Orrell accepted was a wide range of opinion on the issue, one can see why the Judge approached this aspect of the claim cautiously and found that the causal link was not established for the purpose of Section 32A.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Following this decision, in view of the literature as it stands, it would undoubtedly be a brave Claimant team to run a provisional damages argument based on dementia risk alone. But Defendants will not rest easy. This is far from a settled debate.</p> <!-- /wp:paragraph --> <!-- wp:separator --> <hr class="wp-block-separator"/> <!-- /wp:separator --> <!-- wp:paragraph --> <p></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn1" href="#_ftnref1"><em><strong>1</strong></em></a><em> - Agrawal and Ford, Trouble Ahead, PI Focus, July 2018, pp.10-14</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn2" href="#_ftnref2"><em><strong>2</strong></em></a><em> - Barnes et al, Association of Mild Traumatic Brain Injury with and Without Loss of Consciousness With Dementia in US Military Veterans, JAMA Neurol 2018: 75(9): 1055-1061</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn3" href="#_ftnref3"><em><strong>3</strong></em></a><em> - Fann et al, Long-term risk of dementia among people with traumatic brain injury in Denmark: a population-based observational cohort study, Lancet Psychiatry 2018; 5: 424-31</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn4" href="#_ftnref4"><em><strong>4</strong></em></a><em> - Nordstrom and Nordstrom, Traumatic brain injury and the risk of dementia diagnosis: A nationwide cohort study, PLoS Med 15(1): e1002496</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn5" href="#_ftnref5"><em><strong>5</strong></em></a><em> - Graham and Sharp, Understanding neurodegeneration after traumatic brain injury: from mechanisms to clinical trials in dementia, Journal of Neurology, Neurosurgery and Psychiatry 2019; 90: 1221-1233</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><a id="_ftn6" href="#_ftnref6"><em><strong>6</strong></em></a><em> - Hicks et al, Traumatic Brain Injury as a Risk Factor for Dementia and Alzheimer Disease: Critical Review of Study Methodologies, Journal of Neurotrauma 36: 3191-3219 9December 1, 2019)</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Tom has significant experience of brain injury litigation. He has acted in many cases of traumatic and acquired injury in both the personal injury and clinical negligence context. Tom has an interest in the medical issues which arise in these types of claim and he has appeared at trial in the High Court where the arguments have included the Claimant’s entitlement to claim provisional damages.</p> <!-- /wp:paragraph -->

Informed Consent Post Montgomery – &#8220;More than a signature on a form&#8221;

<!-- wp:paragraph --> <p><strong>Written by <a href="https://www.parklaneplowden.co.uk/our-barristers/jonathan-godfrey/" target="_blank" rel="noreferrer noopener">Jonathan Godfrey</a></strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Unbelievably, it is now almost seven years since the Supreme Court revolutionised the legal landscape in respect of informed consent with its seminal judgment in <em>Montgomery v Lanarkshire Health Board </em>[ 2015 ] UKSC 11.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The test of materiality was born.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;A doctor was now <em>“ under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments “. The test of materiality was described as </em>“ <em>whether in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should be aware that the particular patient would be likely to attach significance to it “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It has been said that the decision encapsulated patient choice replacing the previous archaic approach of medical paternalism.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Seven Year post - A Gentle Reminder</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In assessing materiality, the Supreme Court in <em>Montgomery </em>gave the following guidance :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>The assessment of whether a risk is material cannot be reduced to percentages. The significance of a given risk is likely to reflect a variety of factors in addition to its magnitude : the nature of the risk , its effect on the patient’s life , the importance to the patient of the benefits sought by the treatment , the alternatives available , and the risks involved in the alternatives. It is bespoke like a Saville Row suit ; and</li><li>The doctor’s advisory role involves dialogue, the aim of which is to ensure that the patient understands all the matters involved. The information provided is to be comprehensible and is not fulfilled by bombarding with technical information and/or copious brochures/literature</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p><strong>Practicalities and Realities</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Duce v Worcestershire Acute Hospitals NHS Trust</em> [ 2018 ] EWCA Civ 1307, Hamblem LJ gave practical guidance from the Court of Appeal regarding the nature and extent of the duty that was involved in <em>Montgomery </em>informed consent. It is a twofold test and is succinctly set out by Hamblem LJ at paragraph 33 of the judgment as :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li><em>“ what risks associated with an operation were or should have been known to the medical professional in question . This is a matter falling within the expertise of the medical professionals ; and</em></li><li><em>Whether the patient should have been told about such risks by reference to whether they were material. This is a matter for the Court to determine. The issue is not therefore the subject of the Bolam test and not something that can be determined by reference to expert evidence alone “.</em></li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>Accordingly, on a case by case basis, the medical experts instructed are to deal with the risks that that should have been known or ought to have been known by the medical professional in question ( and in so doing this limb seemingly retains homage to Bolam ). In the Duce case, Hamblem LJ specified at Paragraph 42 of the judgment that whether gynaecologists were or should have been aware of the relevant risks at issue <em>“ is a matter for expert evidence”. </em>Thereafter, whether those risks should have been communicated to the patient by reference to whether they were material is a question for the court to determine.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The test is replicated at Paragraph 12 of the judgment of Yip J in the subsequent case of <em>Hazel Kennedy v Dr Jonathan Frankel</em> [ 2019 ] EWHC 106 ( QB ). This is a sorry case in that the Defendant doctor had provided his diagnosis and treatment gratuitously, but it did not absolve him from his duties in respect of informed consent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Hamblem LJ repeated at Paragraph 35 of the Duce judgment , those factors relevant to determining materiality that were previously elucidated by the Supreme Court in Montgomery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Alternative treatment</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Determination of materiality brings with it a need to inform not only of the risk involved in the treatment but also “ <em>any reasonable or variant treatments “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In <em>Bailey v George Elliott Hospital</em> [ 2017 ] EWHC 3398 , HHJ Worster sitting as a Deputy High Court Judge, considered what test should be applied as to whether an alternative treatment was “ reasonable “.&nbsp; He set out the following guidance :</p> <!-- /wp:paragraph --> <!-- wp:list {"ordered":true,"type":"i"} --> <ol type="i"><li>What is a reasonable treatment option must depend upon the patient, their treatment and their prognosis. In essence, all the circumstances ;</li><li>An alternative treatment option must be within the knowledge of a reasonably competent clinician as at the relevant time, and in so doing, satisfy Bolam ;</li><li>The alternative treatment must be an accepted practice at the relevant time ; and</li><li>The alternative treatment must be an “ appropriate “ treatment and not just a “ possible “ one.</li></ol> <!-- /wp:list --> <!-- wp:paragraph --> <p>The case of <em>Mills v Oxford University Hospitals NHS Trust</em> [ 2019 ] EWHC 936 ( QB ) highlights the need to advise as to alternative treatments in addition to the risk involved in the treatment proposed. The surgeon concerned failed to advise that the procedure to be followed was “ new “ and that there was an alternative available.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>In the context of alternative treatment, the case of <em>Mukhtar Malik v St George’s University Hospitals NHS Foundation Trust </em>[ 2021 ] EWHC 1913 ( QB ) considered whether it was reasonable to not offer alternative treatment. In this matter, the clinician, a neurosurgeon offered further remedial spinal surgery and did not propose the alternatives of pain medication or nerve blocks. They had either not worked in the past, or would have had a very limited beneficial effect for a short duration of time. HHJ Blair QC approached the matter through the Bolam prism finding that <em>&nbsp;“ I consider that a responsible, competent, and respectable body of skilled spinal surgeons would have reasonably concluded that there were no reasonable alternative treatments available in the context of the parameters and discussion …. “</em>.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Causation</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A failure to provide informed consent still brings with it the need to establish that the failure was causative. It is not a presumptive sequitur. This is best exemplified in the case of <em>Diamond v Royal Devon and Exeter NHS Foundation Trust</em> [ 2019 ] EWCA Civ 585. The Claimant had had an abdominal hernia repaired using surgical mesh, but was not advised of the alternative of a suture repair. At first instance, HHJ Freedman held that the Claimant had not been given the appropriate information required for informed consent but that had she been so informed she would have proceeded with the mesh repair which in fact took place. The Court of Appeal approved the trial judge’s approach adopted to the question of factual causation. The court re-iterated that the but for test applies to causation in informed consent cases.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A recent exposition of the consideration given by a trial judge as to the facts to establish causation ( in which causation was established ) is usefully illustrated in the judgment of Stacey J in <em>Betty Plant ( by her son and Litigation Friend , Rodney Winchester ) v Mr Ahmed El-Amir and London Eye Hospital Limited</em> [ 2020 ] EWHC 2902 ( QB ).</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Before leaving causation, it is worth noting that at first instance in the <em>Diamond </em>case, those acting for the claimant sought a free standing right to damages to compensate for the invasion of the right to personal autonomy/choice. It failed. HHJ Freedman determined that a <em>“ mere failure to warn of a risk , without more “ </em>&nbsp;does not give rise to a free standing claim in damages. That aspect was not pursued before the Court of Appeal. The grounding of any claim in this respect is unlikely to find a renaissance.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Contemporaneous Evidence</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Contemporaneous evidence is often the deal breaker in informed cases. Such cases generally tend to turn on a dispute of facts in respect of what was said in the consenting process. Accordingly, the contemporaneous medical notes are a must review in the evidential framework of consent, particularly given that the Montgomery decision recognises that each case is bespoke in its considerations. An absence of contemporaneous evidence to establish that informed consent was obtained is “ fraught with risks “. In the case of <em>Malik v St George’s University Hospital NHS Foundation Trust</em> [ 2021 ] EWHC 1913 ( QB )<em>, </em>the clinician concerned did not keep handwritten notes or typed notes of the consent consultation. HHJ Blair QC commented that:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ I was taken aback by his practice of simply dictating a letter to his patient’s GP after an outpatient clinic appointment to relay the details of his patient’s current symptoms, recording his clinical assessment , giving his opinion as to appropriate treatment ( s ) but omitting to state what advice has been given about the risks and benefits of the avenue ( s ) open to the patient. This is a practice which it seems to me is fraught with risks of being unable confidently to answer important questions many years later without having the benefit of a contemporaneous set of detailed notes “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A common and sensible approach often seen by clinicians nowadays following Montgomery, is to keep a detailed set of medical notes of the informed consent process, followed by a letter to the claimant and cc’d to the claimant’s GP setting out precisely what was discussed in the informed consent consultation, focusing on treatment options, risks and alternatives. Such an approach goes a long way evidentially to negate a finding of no valid consent having been obtained.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Montgomery Consequences</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>A study conducted at Queen Mary University of London : <em>“ the effect of the Montgomery judgment on settled claims against the NHS due to failure to inform before giving consent to treatment “ </em>published in March, 2020 ( by DS Wald, JP Bestwick , P Kelly in the Quarterly Journal of Medicine , DOI : HCAA082 ), gives a fascinating insight into the practical effect of the Montgomery decision in so far as claims initiated as against the NHS concerning a failure to provide informed consent.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The research established that while the rate of increase of other clinical negligence claims has remained steady, cases relating to consent have risen four times as fast since the Montgomery decision in March, 2015, and where failure to inform was added as a contributory claim, the rise was nearly ten-fold.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>&nbsp;Data established that as between 2005 and 2019 the NHS settled 70,000 cases of which 2,300 were linked to a failure to inform ( either primary or secondary ) with a total value of nearly £400 million. Between 2011 and 2015 , costs for settling informed consent cases rose from £25 million to £28 million per annum. Thereafter, from 2015 ( post Montgomery ) to 2019 costs rose to £62 million per annum. The rise was purely due to the increase in the numbers of claims,as the cost per claim remained steady. The study found that lawyers’ fees accounted for about 40 per cent ( £155 million ) of costs paid by the NHS in settled claims due to a failure to inform.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Professor Wald remarked that <em>“ claims involving failure to inform are normally invisible in the overall numbers of negligence claims , but the rise we have identified is striking and shows no signs of stopping. The data support concerns that lawyers are adding consent-related claims to other allegations which on their own may not be successful in court. The Montgomery ruling now makes these cases much easier to win, and the NHS is paying the bill “.</em> Professor Wald’s study is symbolic evidence of the growth in informed cases being brought post Montgomery.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>From the medical perspective, some five and a half years post the Montgomery decision, the GMC issued new guidance to doctors entitled “ Decision Making and Consent “. It was dated 30<sup>th</sup> September, 2020, and came into practical effect on 9<sup>th</sup> November, 2020. It replaced the GMC guidance on consent last issued in 2008. The guidance focuses on “ <em>the importance of meaningful dialogue , personalised communication and potential benefits and harms , and how doctors can support patients to make decisions with them about treatment and care “. </em>At its core are <em>“ the </em>seven principles of decision making and consent “ , and Lawrentian in their wisdom . The seven principles find their genesis and meaning in the Montgomery judgment. At the heart of the new guidance is the concept of meaningful dialogue. The new guidance translates the Montgomery decision into practical guidance for medical professionals. A central tenet is the keeping of contemporaneous medical notes.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>The present vista</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>It is clear as per the research by Professor Wald and his co-authors that the Montgomery decision has seen a rise in informed consent cases per se, or in tandem with substantive allegations of negligence. It has had a profound effect on informed consent not only from a legal but also a medical viewpoint. The decision from the perceived ivory tower of the Supreme Court has resonated throughout the day to day decisions on consent made in hospitals and GP surgeries nationwide.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The crux of what represents informed consent post Montgomery is probably best summed up by the guidance given by the <em>Royal College of Physicians and Surgeons of Glasgow</em>, and which states the following:</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>“ Despite how it can often feel in the middle of a busy clinic, or at the start of a full theatre list, consent is more than obtaining a signature on a piece of paper. It is process that is part of patient-centred care and begins with finding out what matters to the patient, identifying what options are reasonable – including the option of no treatment – and helping the patient decide which option suits them best.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><em>The decision the patient makes may not be the one you would have made but, if the patient has been kept at the centre of the process, it should be the right one for the individual patient at that time. When the moment comes to sign the consent form if a patient has been fully involved in the process and enabled to weigh up the different options and their benefits and risks – risks that must be transparently presented – then truly informed consent will have been given “.</em></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>The precis is simple, post Montgomery consent is “ a <em>process not a signature on a form</em>“.</p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p><strong>Author</strong></p> <!-- /wp:paragraph --> <!-- wp:paragraph --> <p>Jonathan Godfrey is a specialist clinical negligence barrister.</p> <!-- /wp:paragraph -->