EMPLOYMENT

Job sharing - proportionality - sex discrimination - objective justification - reasonable necessity - margin of appreciation or range of reasonable responses - critical evaluation required to be demonstrated in reasoning of tribunal - unfair dismissal

Hardys & Hansons Plc v Lisa Lax: CA (Civ Div) (Lords Justice Pill, Thomas, Gage): 7 July 2005



The employer's refusal to permit job-sharing of a full-time job amounted in the circumstances to unlawful indirect sex discrimination, contrary to section 1(2)(b) of the Sex Discrimination Act 1975.


The appellant employer (H) appealed against the decision that its rejection of the requests of the respondent (L) to job-share was unlawful sex discrimination under the 1975 Act, and that her dismissal had accordingly been unfair.


H was a brewer and ran a chain of managed and tenanted public houses. L had been employed as a retail recruitment manager. H had rejected L's request to be allowed to work part-time on her return from maternity leave. Before L had returned to work from maternity leave, her role had become redundant and a new role of tenant support manager had been created. The employment tribunal found that the new job could have been done by two job-sharers or part-time workers and that H had unlawfully discriminated against L by insisting that the new job had to be performed on a full-time basis.


The issue on appeal was whether H could show, under section 1(2)(b)(ii), that its decisions were objectively justifiable, irrespective of the sex of the person to whom they were applied. L submitted that the requirement that the employer justify the scheme objectively did not permit the margin of discretion or range of reasonable responses test which was available to an employer when unfair dismissal was being considered.


Andrew Clarke QC, Jason Coppel (instructed by Browne Jacobson, Nottingham) for the appellant; Brian Langstaff QC, David Massarella (instructed by Richard Hutchinson & Co, Nottingham) for the respondent.


Held, the employer had to show that the proposal, in the instant case for a full-time appointment, was justified objectively notwithstanding its discriminatory effect. The principle of proportionality required the tribunal to take into account the reasonable needs of the business. But it had to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal was reasonably necessary. The reasonableness qualification did not permit the margin of discretion or range of reasonable responses which H contended.



A critical evaluation was required and had to be demonstrated in the reasoning of the tribunal. Applying the correct test, the decision of the employment tribunal was upheld. It had considered H's objections to job-sharing and had had the opportunity during the hearing to assess the seriousness with which H's witnesses had approached the feasibility of job-sharing. The tribunal had concentrated on the decision in respect of L's old job, but had been entitled to reach the same conclusion on the new job.


The employment tribunal was right that a finding of unfair dismissal followed inevitably from the findings adverse to H under section 1(2)(b) of the 1975 Act. Appeal dismissed.






FAMILY


Care proceedings - child abuse - findings of fact - parental contact - lack of logical coherence in judgment - defined contact orders

D (Children): CA (Civ Div) (Lords Justice Ward, Clarke, Sir William Aldous): 6 July 2005


The Court of Appeal went behind the judge's findings of fact of sexual abuse by the father of children who were the subject of care proceedings where the judgment lacked logical coherence.


The appellant father (F) appealed against findings in care proceedings that he had sexually abused his children and sought an order for defined contact. F and his wife (M) had four children. Two of the children (L) made allegations to a foster carer and a classroom assistant that were construed as allegations of sexual and physical abuse in the family. The allegations related to F, M and L's elder brother (S). At the police interview, L did not elaborate on those allegations in relation to F. At the conclusion of the proceedings, the judge found that L's police interviews added nothing to support or negate the allegations; that it was not necessary to make findings about each and every allegation; and that L had suffered sexual abuse as described to the foster carer and classroom assistant. Accordingly, a care order was made and contact was left for the local authority to review. The judge refused to make findings that S had sexually abused L. F sought to reverse the findings of sexual abuse against him and sought an order for defined contact with his children once a month.


Peter Collier QC, Kate Buckingham (instructed by John Wood Partnership, Wakefield) for the appellant; Eleanor Hamilton QC, John Hayes (instructed by the local authority solicitor) for the respondent.


Held, the judge's findings of fact could not be upheld. It had been necessary for the judge to make findings about each individual allegation of sexual harm as the guardian and psychologist were agreed that without findings of direct sexual harm, regular contact should be allowed between the children and their parents. There was an inconsistency in the judgment in that if L's disclosure to the foster carer and classroom assistant were accepted as credible by the judge, then it followed that S was a perpetrator of the abuse within the family. It was difficult to see how the evidence could be compelling enough to convict F but not S. The judge was wrong to hold that L's police interviews had no evidential value as L took the opportunity to talk about behaviour of concern to them, yet said nothing about F. The judgment lacked logical coherence and had to be reviewed. On a reconsideration of the allegations, the evidence was not sufficient to justify findings that F had sexually abused his children. The case was remitted to the judge to decide the appropriate contact. Appeal allowed.






LANDLORD AND TENANT


Formalities - leases - purchase notices - service - tenants' rights - time limits - service of documents indicating disposal by landlord - formal steps required - disposal of freeholder's title - meaning of service

Christos Savva & others v Philip Galway-Cooper: CA (Civ Div) (Lords Justice Chadwick, Clarke, Carnwath): 6 July 2005


A purchase notice expressed as being served upon the landlord pursuant to section 12(b) of the Landlord and Tenant Act 1987 was not out of time since the landlord had not established, on the facts of each of the tenancies, that documents, indicating that the disposal of the relevant leases had taken place, had been served on the requisite majority of qualifying tenants more than three months before the issue of the purchase notice.


The appellant tenants appealed against a decision that their purchase notice, issued against the respondent landlord, had been out of time. The property comprised four flats of which the appellants were tenants under four leases. By the proceedings, they sought to enforce a purchase notice expressed as being served upon the landlord pursuant to section 12(b) of the 1987 Act. The notice required the landlord to dispose of two leases (the leases), which had been granted to him by previous freeholders, in respect of the roof space and the front garden. It was served on 16 May 2003. Accordingly, under the time limits prescribed by section 11(2)(b) of the Act for the service of the purchase notice, the appellants had to show that documents, indicating that the original disposal of the leases had taken place, had been served on the requisite majority of qualifying tenants of the constituent flats after 16 February 2003. In the case of each of the appellants, the landlord argued that service of those documents upon the requisite majority had taken place more than three months prior to the issue of the purchase notice, and that accordingly, the appellants had been out of time. In the case of the first flat, service had been effected by a letter from the landlord's own solicitor to the landlord himself. In the case of the second flat, service had never been effected and so was not in issue and, in the case of the third and fourth flats, the appellants had merely seen office copy entries of the freehold title which had shown the existence of the disposal. The trial judge upheld the respondent's argument on the ground that a document, wherever it had come from, if received by a person, had been served, and that upon the facts of each tenancy, documents had been served upon the requisite majority of qualifying tenants indicating the original disposal before 16 February 2003.


The appellants argued that the judge had been wrong in his determination of what had constituted 'service' for the purposes of the Act. They argued that service of a document had to be by a party interested in service or by his agent and could not be by a stranger, and that service of a document for the purposes of section 11(2) had to have been intended to give notice of the relevant disposal and could not be incidental.


Mr Douthwaite (instructed by Georgiou Nicholas, London) for the appellants; Anthony Radevsky (instructed by Baron Grey, Twickenham) for the respondent.


Held, the judge was wrong in his interpretation of what constituted 'service' for the purpose of section 11(2). Section 11 gave the requisite majority of qualifying tenants of the constituent flats a right to require a new landlord to serve upon them certain information, including particulars of the disposal itself. That was a group right which was exercisable by the group serving a notice of purchase within the prescribed period. For the tenants within the group to be able to exercise their right to serve a purchase notice, they had to have been in a position, as a group, to know that the right had arisen. In that context, service by the landlord was a formal step and could not be done by way of incidental or other means. On the facts of each of the tenancies, the judge was wrong to have found that there had been the requisite service. Accordingly, the respondent was required to surrender or otherwise transfer the leases to the appellants. Appeal allowed.






SENTENCING


Assassination - disparity of sentence - life imprisonment - minimum term - murder - sentence length - public execution - absence of previous convictions - contract killing - hit-man

R v Vincent Kerr: CA (Crim Div) (Lords Justice Rose (Vice-President), Mr Justice Holland, Mr Justice Richards): 6 July 2005


A recommended minimum term of 24 years, following a sentence of life imprisonment, was severe but not manifestly excessive for a public execution. The absence of previous convictions was of little importance in such a case.


The appellant (K) appealed against a life sentence with a recommended minimum term of 24 years' imprisonment following his conviction of murder. Following an argument with the victim (V), the co-accused left, saying he would return with a gun. A short time later, the co-accused returned with K, who had a gun. The co-accused attacked V with a machete and K shot him twice, once to the back of the head, which killed him. The co-accused gave himself up to police, was convicted of murder and sentenced to life imprisonment with a recommended minimum term of 15 years. K, who had no previous convictions, denied any involvement and denied being in the area at the time. When sentencing, the judge took a starting point of 30 years and held that the murder was equivalent to a contract killing. K contended that the appropriate starting point should have been 15 to 16 years and the judge was wrong to hold that the offence was equivalent to a contract killing. The offence was a long way from an organised criminal contract for killing as, for example, K had used no disguise in an area where he was known. It was the co-accused who actively participated in the violence before the shooting and, having regard to the 15-year recommended period for the co-accused, the 24-year term for K was significantly higher than it should have been.


David Lederman QC, Jenny Dempster (instructed by Waller Needham & Green, Peterborough) for the appellant; Michael Worsley QC, Duncan Penny (instructed by the Crown Prosecution Service) for the Crown.


Held, the recommended minimum term was severe but was not manifestly excessive or wrong in principle. The approach of the Court of Appeal, in relation to appeals against the recommended minimum term, was set out in R v Peters [2005] EWCA Crim 605; (2005) The Times, 29 March, considered. This was a public execution in the presence of many by a hit-man who, at short notice, was available and able to equip himself with a lethal weapon. In such a case, the absence of previous convictions was of less importance. The fact that a judge on another occasion recommended a lower term, which was possibly too low, for the co-accused who procured K as an assassin afforded no support for an argument of disparity (R v Fawcett (1983) 5 Cr App R S 158, considered). Appeal dismissed.




Burden of proof - life imprisonment - Northern Ireland - early release provisions - assessment of risk to public if prisoner released - Good Friday agreement

In the matter of McClean: HL (Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood): 7 July 2005


Where the secretary of state made an application under section 8 of the Northern Ireland (Sentences) Act 1998, the task of the Sentence Review Commissioners was to make an informed assessment of risk to the public. In the instant case, there had been no error in principle in the commissioners' approach to the secretary of state's application.


The appellant Sentence Review Commissioners appealed and the respondent individual (M) cross-appealed against a decision regarding the burden of proof on an application under section 8 of the 1998 Act.


On a particular day in Northern Ireland, two masked gunmen had walked in to a pub, asked the occupants to lie down and then opened fire, intending to kill as many people as possible. Two people were killed and two sustained serious injuries. M was found guilty of either being one of the masked gunmen or actively assisting the gunmen in their murderous enterprise in full knowledge of their intent. M was sentenced to life imprisonment for both murders, concurrent sentences of 20 years' imprisonment for two attempted murders and 15 years for possessing a firearm. Under section 3 of the Act, M applied for a declaration that he was eligible for early release, which was granted. M fell within section 10(5) and was due to be released in accordance with the date specified in that section. Prior to that date, while on pre-release leave from prison, M became involved in an incident that culminated in a man being seriously injured. M was subsequently acquitted of a charge of causing grievous bodily harm arising from that incident. The secretary of state made an application under section 8 on the grounds that M no longer satisfied the fourth condition of section 3. That application was granted and the declaration under section 3 in favour of M was revoked. The commissioners submitted that the court below had erred in concluding that M did not have to satisfy them that he would not be a risk to the public if released, that it was for him to persuade the commissioners that the fourth statutory condition was satisfied, or alternatively, that the commissioners were required to make a judgment about dangerousness without regard to burden of proof. M submitted that the right to liberty conferred by section 3 was, although defeasible, a civil right within the autonomous meaning of article 6 of protocol 1 to the European Convention on Human Rights and also, or alternatively, a right which entitled him to the procedural protection of article 5(4).


John Larkin QC, Barry Torrens (instructed by Field Fisher Waterhouse, London, as agents for Cleaver Fulton Rankin, Belfast) for the appellants; Seamus Treacy QC, Karen Quinlivan (instructed by Arthur J Downey & Co, Belfast) for the respondents; Bernard McCloskey QC, Piers Grant (instructed by the Treasury Solicitor) for the intervener.


Held, the four conditions laid down in section 3 were not of the same character. The fourth condition called upon the commissioners to make the best judgment they could on the material available to them. Although there was a danger in an unduly legalistic approach to what was a very difficult predictive judgment required on behalf of the commissioners, there were certain propositions concerning the correct approach to the fourth condition. Firstly, when considering a section 3 application by a life sentence prisoner, there could be no presumption that he would not be a danger to the public if released immediately. Secondly, section 8 could not be invoked simply because the secretary of state or the commissioners had second thoughts about the section 3 declaration that had been made. In order to trigger the operation of section 8, something had to have changed since the making of the declaration. When such a change was shown, the commissioners had to assess its significance in relation to satisfaction of the statutory conditions. Thirdly, the commissioners had to recognise that Parliament had conferred a right of accelerated release on a qualifying life sentence prisoner who satisfied the four statutory conditions. That was an important right that could not be belittled or discounted or lightly taken away. Nor was it a right that could override the important interest of public safety. The commissioners' task was to make an informed assessment of risk, be it under a section 3 or section 8 application. In the instant case, there was no error in principle in the commissioners' approach to the section 8 application, nor could their assessment of the facts be faulted.


The use of the word 'suggests' in section 8(2)(b) posed some ambiguity. The word was quite appropriate in section 8(1)(b), where it defined the conditions in which the secretary of state should apply for revocation. However, the commissioners had to make a definitive determination, and the court would have expected to have found their task defined in terms of deciding whether, in their judgment, the conditions were or were not satisfied.


What fell for consideration in the instant case was not the fairness of the procedural regime but its fairness or unfairness as applied to M. There was no doubt that the procedure adopted did not cause unfairness to M. Appeal allowed, cross-appeal dismissed.






TAX


Corporation tax - deductions - emoluments - employee benefit trusts - meaning of 'potential emoluments' in section 43(11)(a) of the Finance Act 1989 - computation - statutory interpretation - purpose

Ronald MacDonald (HMIT) v Dextra Accessories Ltd: HL (Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe): 7 July 2005


Payments made by a company to an employee benefit trust, which empowered the trustee to use the relevant funds both to pay emoluments and to make payments which were not emoluments, were 'potential emoluments' within the meaning of section 43(11)(a) of the Finance Act 1989.


The appellant taxpayer company (D) appealed against a decision ((2004) EWCA Civ 22; [2004] STC 339) that certain payments which it had made to an employee benefit trust were 'potential emoluments' within the meaning of section 43(11)(a) of the 1989 Act. The trust had been established 'with a view to encouraging and motivating employees'. The trust deed conferred on the trustee a wide discretion over capital and income to pay money and other benefits to any of the named beneficiaries and a power to lend them money.


On 21 December 1998, D and its associated companies paid a total of £2.75 million to the trustees. No payments were made to the beneficiaries before 31 December 1998, when D's accounting year ended, but during 1999, most of the money was allocated to employees, part in the form of emoluments and part in other forms. The Revenue & Customs argued that the money was a 'potential emolument' within the meaning of section 43(11)(a), since, under the terms of the trust, it could have been used to pay emoluments. The funds were held by an intermediary, the trustee, 'with a view to their becoming relevant emoluments', so that the rule of non-deductibility applied until and insofar as the funds were applied in the payment of emoluments.


Andrew Thornhill QC, Jonathan Peacock QC, Rupert Baldry (instructed by Levy Watters, London) for the appellants; Timothy Brennan QC, David Ewart (instructed by Solicitor to Revenue & Customs) for the respondents.


Held, the payments to the employee benefit trust were 'potential emoluments' within the meaning of section 43(11)(a). In the ordinary use of language, the whole of the funds were potential emoluments; they could be used to pay emoluments. As the Court of Appeal had noted, the words 'with a view to their becoming relevant emoluments' in section 43(11)(a) applied both to the purpose for which amounts were held by an intermediary and to the purpose for which they were 'reserved in the account of an employer'; the words had to have a similar meaning in both contexts. While it was true that such a construction of section 43(11)(a) had the effect that, unless the funds were at some point applied in the payment of relevant emoluments, they would never become deductible, any untoward consequences could be avoided by segregating the funds held on trust to pay emoluments from funds held to benefit employees in other ways. If D's suggested construction of section 43(11)(a) were correct, the purpose of section 43 would easily be frustrated; by setting up a trust such as the one in the instant case, the taxpayer could achieve immediate deductibility of payments into the trust and postpone indefinitely the liability of employees to tax on the emoluments for which, in part, the money was eventually applied. Appeal dismissed.