Discrimination Employment Land Landlord and tenant Practice Revenue




Discrimination



Disabled employee requiring transfer to sedentary post - reasonable steps required of employer may include dispensing with competitive interviews



Archibald v Fife Council: HL (Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Rodger of Earlsferry, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood): 1 July 2004



The applicant suffered complications during surgery that left her virtually unable to walk and no longer able to carry out her work as a road sweeper.



The council retrained her for office work and placed her on the shortlist for all office vacancies but, in accordance with its redeployment policy, required that she went through competitive interviews. She was interviewed for many posts without success, and eventually dismissed on grounds of her incapability to carry out her employment as a road sweeper.



The applicant complained to an employment tribunal that, among other things, she had been unlawfully discriminated against under sections 4(2) and 5 of the Disability Discrimination Act 1995 in that the council had been under a duty under section 6 of the Act to take 'reasonable steps' including, by section 6(3)(c), a transfer to fill an existing vacancy, and that such steps required her transfer to a sedentary post without competitive interview.



The employment tribunal dismissed the claim. The Employment Appeal Tribunal dismissed the applicant's appeal and the Inner House of the Court of Session dismissed her further appeal. The applicant appealed.



Robin Allen QC and Brian Napier QC of the Scots Bar, and of the English Bar, (instructed by Solicitor, Disability Rights Commission) for the applicant; Aidan O'Neill QC of the Scots Bar, and of the English Bar, Ian Sharpe and Simon Collins, both of the Scots Bar, (instructed by Balfour & Manson, Edinburgh) for the council.



Held, allowing the appeal, that the circumstances where a section 6 duty arose included an employee becoming incapable of fulfilling their job description, so as to become liable to be dismissed, and the duty was therefore triggered in the instant case; that the duty was to take such steps as it was reasonable in all the circumstances of the case for the employer to have to take; that, on the face of it, transferring the applicant without competitive interview to fill an existing vacancy for which she was qualified, whether at the same or a slightly higher grade, was among the steps that it might have been reasonable in all the circumstances for the council to have to take once she could no longer walk and sweep; and that, accordingly, since that had not been considered by the employment tribunal, the case would be remitted back for consideration as to whether the section 6(1) duty had been fulfilled. (ICR)



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Employment



Health and safety - personal protective equipment - employers' duty not extending to repair having no bearing on function as protective equipment



Fytche v Wincanton Logistics plc: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Baroness Hale of Richmond): 1 July 2004


The claimant, who was employed by the defendant to drive a bulk tanker, was provided with steel-capped safety boots to protect his feet against injury from heavy objects. During a night of extreme weather conditions the claimant's tanker became stuck in snow and he spent several hours digging it free unaware of a tiny hole in one of his boots. The claimant suffered frostbite in his toe and brought proceedings against the defendant alleging, among other things, breach of the duty under regulation 7(1) of the Personal Protective Equipment at Work Regulations 1992 (SI 1992/2966) for employers to keep personal protective equipment 'in an efficient state... and in good repair'.



The recorder held that although the boots were personal protective equipment, the hole had not undermined their capability to protect against injury from heavy objects for which they had been supplied and therefore, the claim fell outside the ambit of regulation 7(1). The judge dismissed an appeal by the claimant and the Court of Appeal, by a majority, upheld the judge's decision. The claimant appealed.



Peter Birts QC and Geoffrey Kelly (instructed by Lovell Son & Pitfield for Warner Goodman & Streat, Portsmouth) for the claimant; James Dingemans QC and Richard Nussey (instructed by Plexus Law, London) for the defendant.



Held, dismissing the appeal (Lord Hope of Craighead and Baroness Hale of Richmond dissenting) that regulation 4 of the 1992 regulations required employers to provide equipment suitable to protect employees against identified risks; that the duty under regulation 7(1) was to maintain and repair that equipment so that it continued to provide protection against those risks and did not extend to repairs or maintenance having no bearing on its function as personal protective equipment; and that, accordingly, since the claimant's boots had been in efficient working order and good repair for the purpose of protecting against the assessed risk, there had been no breach of duty under the regulations. (ICR)



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Land



Planning - inspector allowing application for permission to occupy mobile home on green-belt land - inspector's reasons adequate - unlawful-ness of prior occupation not material consideration



South Bucks District Council and Another v Porter (No 2): HL (Lord Steyn, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell and Lord Brown of Eaton-under-Heywood): 1 July 2004


Since 1985, the applicant, a gypsy, had lived in a mobile home stationed on her own land in a green-belt area. Her occupation of the land continued despite being in breach of planning control and despite enforcement notices being issued against her by the local authority. She applied for retrospective planning permission which was granted by the inspector on the grounds that her status as a gypsy, the lack of an available alternative site in the area, and her chronic ill health constituted special circumstances that justified overriding green-belt policy. The council challenged that decision and, reversing the judgment at first instance, the Court of Appeal held that the inspector had failed to give adequate reasons for his decision and had failed to have regard to a material consideration, namely, that the applicant's continued occupation of the site had been unlawful and in persistent breach of planning control. The applicant appealed.



Charles George QC and Stephen Cottle (instructed by Community Law Partnership, Birmingham) for the applicant; Timothy Straker QC and Ian Albutt (instructed by Sharpe Pritchard, London) for the local authority; Nathalie Lieven (instructed by Treasury Solicitor) for the Secretary of State for Transport, Local Government and the Regions.



Held, allowing the appeal, that the inspector's reasoning had been both clear and ample and there was no basis for inferring a material misdirection; that although the unlawfulness of prior development can militate against the retrospective grant of planning permission in circumstances where the occupier seeks to rely on the very fact of the continuing use of the land or a long period of residence; and that although the applicant's occupation of her land had been persisted in for many years despite being enforced against and could properly be categorised as criminal and, therefore, was potentially material to the case; that, however, the applicant's application for planning permission on grounds of personal hardship had not been based on factors that owed anything to the length of her residence; and that, accordingly, the unlawfulness of her prior occupation of the site was of little, if any, materiality to the case and required no detailed discussion in the inspector's decision letter. (WLR)



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Landlord and tenant



Breach of covenant - occupying sub-sub-tenants of demised flat causing nuisance to neighbours - landlord's forfeiture notice failing to give reasonable time to remedy breach - notice not valid to effect forfeiture



Courtney Lodge Managements Ltd v Blake and others: CA (Sir Andrew Morritt Vice Chancellor, Lord Justice Chadwick and Lord Justice Sedley): 1 July 2004


The tenant acquired a long lease relating to a flat. Under the lease he covenanted 'not to do or suffer to be done anything which might become a nuisance, annoyance or inconvenience to the owners or occupiers of other parts of the lessor's property'.



The tenant granted a sublease of the flat without securing a similar covenant from the sub-tenant who underlet the flat to a local authority to accommodate the third to fifth defendants (the occupiers). The occupiers caused continued nuisance to their neighbours. The landlord served a forfeiture notice under section 146 of the Law of Property Act 1925 on the tenant to abate the nuisance and the tenant, in the same week, wrote to the sub-tenant requesting them to take steps against the occupiers.



A month after the forfeiture notice, the landlord commenced forfeiture proceedings and the tenant contended that he had no contractual right to sue the occupiers and had not been given a reasonable time to comply with the notice. The county court judge made an order for possession with liberty to the tenant to seek relief on payment of costs to the claimant and the sub-tenant. The tenant appealed.



David Lonsdale (instructed by Alan Winter, Peace & Co, Ilford) for the tenant; John Clargo (instructed by Porter & Jaskel, London) for the landlord; Michael Gibbon (instructed by Christos Wybrew, Enfield) for the sub-tenant; the occupiers did not appear and were not represented.



Held, allowing the appeal, that although the tenant, who had failed to secure a forfeiture clause similar to the one contained in the original lease, could not legitimately argue in court that he had no power to take action to abate the nuisance, since the forfeiture notice failed to give a reasonable time to the tenant to abate the nuisance in the circumstances of the particular case, the forfeiture notice was not valid to forfeit the lease.



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Practice



Vexatious litigant - general civil restraint order embracing county court - power of Court of Appeal to make general civil restraint order embracing the county court



R (Mahajan) v Central London County Court and Another: CA (Lord Justice Brooke and Lord Justice Dyson): 30 June 2004


The applicant, a litigant in person who had brought numerous proceedings in the county court, High Court and Court of Appeal, appeared in the Court of Appeal seeking, among other things, permission to appeal. The Department for Constitutional Affairs also appeared as a defendant, seeking a general civil restraint order against the applicant that would embrace not only the High Court and Court of Appeal but also the county court. An issue of jurisdiction arose as to the inclusion of the county court in such orders.



The applicant appeared in person. Susan Chan (instructed by the Treasury Solicitor) for the Department for Constitutional Affairs.



Held, that Lord Woolf, Lord Chief Justice, when refusing applications for leave to appeal from the High Court in Ebert v Venvil [2000] Ch 484, 498, had said that it would be absurd if, in the case of a vexatious litigant, a separate order were necessary in the county court where an order was in any event going to be made in the High Court; that, with the authority of Master of the Rolls, Lord Phillips of Worth Matravers, it could now be stated that the Court of Appeal did indeed have power to make the order sought, such power being available to protect the court's process as well as other litigants; and that on the facts, a two-year order would be made in the terms sought.



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Revenue



Inheritance tax - appeal to special commissioner - no jurisdiction to determine property valuation issues



Inland Revenue Comrs v Arkwright and Another: ChD (Mrs Justice Gloster): 16 July 2004


The deceased and his wife had owned the matrimonial home as tenants in common in equal shares. The wife was younger than the deceased and in better health. He died in 2001 after a short illness. The deceased's personal representatives appealed against a notice of determination to inheritance tax raised on the basis that sections 160 and 161 of the Inheritance Tax Act 1984 (market value/related property provisions) applied, requiring the deceased's interest in the property immediately before his death to be valued at one half. An appeal against the notice was upheld by a special commissioner. The Inland Revenue appealed.



Kate Selway (instructed by solicitor of Revenue) for the Revenue; Jolyon Maugham (instructed by Hague Lambert, Knutsford) for the personal representatives.



Held, allowing the appeal, that issues of law as to the construction and effect of sections 160 and 161 of the 1984 Act were for the special commissioner to decide; but that as her decision on those issues gave rise to a dispute as to the valuation of an interest in property the only course open to her was to remit the case for valuation by the Lands Tribunal.



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The law reports are prepared by the reporters to the Incorporated Council of Law Reporting for England and Wales; telephone: 020 7242 6471; fax: 020 7831 5247; http://www.lawreports.co.uk

WLR means that a report has been submitted for publication in the Weekly Law Reports or ICR for the Industrial Case Reports