EDUCATION
Failure to secure school attendance - parental liability - strict liability - strict liability offences - registered pupils - non-attendance - unauthorised holidays
Bromley London Borough Council v C: DC (Lord Justice Auld, Mr Justice Sullivan): 7 March 2006
The appellant local authority appealed by way of case stated against the decision of a magistrates' court to acquit the respondent (C) of offences under section 444(1) of the Education Act 1996.
The local authority had laid informations against C that, in respect of three children, she had committed offences contrary to section 444(1) as she was the parent of a child of compulsory school age, registered as a pupil at a particular school, and had failed to secure the regular attendance of the child at the school.
The children had, on average, attended school on 37 days over a period of 57 days. Part of the period of absence was attributable to unauthorised holidays. Before the magistrates' court, C contended that she had not failed to secure regular attendance in accordance with section 444 as, apart from the holidays, the children's non-attendances were caused by the sickness of the children or C and travel difficulties.
The court held that the offences were not made out, as C had not failed to secure regular attendance; C ought to have exercised more care regarding absences for holidays during school term, but the absences were justified; and C had provided good and cogent explanations for other absences recorded on the school record of attendance.
The questions posed for the opinion of the High Court were, having accepted C's explanations for recorded absences, whether the magistrates' court was wrong to take those explanations into account to determine whether or not C had, in fact, failed to secure regular attendance or whether the court was bound by the record of attendance actually recorded by the school, and whether the taking of an unauthorised holiday of itself amounted to failing to secure regular attendance.
Jonathan Hall (instructed by the local authority solicitor) for the appellant; Rodney Dixon (instructed by Robin Murray & Co) for the respondent.
Held, the magistrates' court was correct to listen to all of the facts and to take into account all the evidence before it, including the record of attendance. This record was not conclusive and was merely the starting point for the determination of the issue.
Although the second question posed for the opinion of the court was phrased in the abstract, the real question was whether any reasonable magistrates' court could have reached the conclusion that the court did in this case. The court had to ask itself the simple question of whether there was regular attendance by the children. Instead, it had erred in considering whether the holidays were 'justified', which was a matter for the school alone to decide. It appeared from the facts stated that the court had not properly directed itself and had confused an offence under section 444(1), a strict liability offence, with an offence under section 444(1)(a) under which a defence of reasonable justification arose.
In this case, it was clear that C's children had not attended school regularly. Accordingly, the acquittals were quashed and the case remitted to the magistrates' court with a recommendation that the appropriate penalty was an absolute discharge.
Appeal allowed.
EMPLOYMENT
Contract of employment - equal pay - occupational pensions - part-time workers - time-limits - transfer of undertakings - occupational pension schemes
(1) Powerhouse Retail Ltd (2) Seeboard Retail Plc (3) Midlands Electricity Plc (appellants) v (1) VM Burroughs (2) KA Bartlett (3) D Carey (3) A Sheen (respondents) and Secretary of State for Education (intervener): HL (Lords Hope of Craighead, Scott of Foscote, Rodger of Earlsferry, Carswell, Brown of Eaton-under-Heywood): 8 March 2006
The appellants (Y) appealed against the decision ([2004] EWCA Civ 1281) that where there had been a transfer of undertaking, time under section 2(4) of the Equal Pay Act 1970 began to run, for the purposes of claims brought against the transferer, from the date of the transfer, not from the termination of the employee's employment with the transferee.
The litigation had arisen from equal pay claims brought by female part-time workers in relation to denial of access to occupational pension schemes. Y had been originally employed within the nationalised electricity industry as part-time workers. They had been denied access to the scheme, as their working hours had been insufficient to qualify them for the scheme.
On 1 April 1988, the working hour threshold was removed and Y began to accrue benefits under the scheme. Following the privatisation of the electricity industry, a transfer under the Transfer of Undertakings (Protection of Employment) Regulations 1981 took place and Y's employment was transferred to a new employer. Y brought equal pay claims seeking retrospective access to the scheme for periods of employment prior to 1 April 1988. They accepted that their claims, which were presented more than six months after the transfer, were against the transferer.
The Court of Appeal treated the contract between the transferer and employee containing the equality clause relating to pension rights as separate from the post-transfer contract, and held that the claims were based on the previous contract that terminated on the transfer, and that time under section 2(4) of the Act began to run from that date. Y contended that time ran against the claims from the end of the employment with the transferee and that the court was wrong to separate out the contract containing the equality clause relating to the pension rights from the contract with the transferee, as the contract with the transferer was not brought to an end on the transfer under the regulations.
John Cavanagh QC (instructed by Unison employment rights unit) for the appellants; Christopher Jeans QC, Jason Coppel (instructed by Eversheds) for the respondents; Nicholas Paines QC, Raymond Hill (instructed by the Treasury Solicitor) for the intervener.
Held, a succession of contracts could not be treated as a single contract for the purposes of the time-limit. Where there was a succession of contracts with the same employer, the contract in respect of which the claim was made relating to the operation of the equality clause was the relevant contract of employment for the purposes of the time-limit.
The word that section 2(4) used to identify the moment that started the running of the time-limit was the word 'employment'. The claim to which the time-limit was to be applied was the claim in respect of the operation of an equality clause relating to the woman's employment. The plain and natural meaning of the subsection was that the claim had to be brought within six months of the end of the employment to which the claim related, Preston v Wolverhampton Healthcare NHS Trust (C78/98) [2000] ICR 961 considered.
The rule in section 2(4) applied to each and every claim that might be made in respect of the contravention of a term modified or included by virtue of an equality clause. The same rule had to be applied where there had been a transfer under the regulations.
The only question was to which employment the claim related. Where the claim was in relation to the operation of an equality clause relating to an occupational pension scheme before the date of the transfer, it related to the woman's employment with the transferer.
The effect of Y's argument was that a transferer would be exposed to claims relating to its pension scheme indefinitely. That was not the aim of the regulations.
Appeal dismissed. (For European Court of Justice proceedings, see Preston v Wolverhampton Healthcare NHS Trust (C78/98) [2000].)
Contract of employment - agencies - status - implied contracts - unfair dismissal
Cable & Wireless Plc v P Muscat: CA (Civ Div): (Master of the Rolls Sir Anthony Clarke, Lords Justice Smith, Maurice Kay): 9 March 2006
The appellant (C) appealed against the decision of the Employment Appeal Tribunal that a contract of employment was to be implied between C and the respondent (M).
M had been employed as a telecommunications specialist by an Internet company (E). It had dismissed M and then immediately re-engaged him as a contractor, providing his services through a limited company. E had been taken over by C and M continued to work as before, although under the direction of C's management.
Within C's departmental structure, M was described as an employee. C did not deal with contractors directly and had entered into an agreement with an agency to provide contract personnel.
Therefore, C required M to deal with the agency and M's company accordingly entered into an agreement with the agency to provide services to C; the agency paid M's invoices. C later dispensed with M's services and M claimed compensation for unfair dismissal.
C maintained that M was not an employee. The employment tribunal held that M had continued to be employed by E after he became a contractor, that M had become an employee of C after C's takeover of E, which was subject to the Transfer of Undertakings (Protection of Employment) Regulations 1981, and that M remained an employee by virtue of an implied contract.
C submitted that there could not be a contract of employment between it and M, even though it exercised control, since the agency was responsible for paying M and there was therefore insufficient mutuality of obligation between it and M.
Frederic Reynold QC, Anya Palmer (instructed by Charles Russell) for the appellant; Omar Mailk (instructed by Steele Raymond) for the respondent.
Held, in a typical 'triangular' case, the tribunal had to consider on the whole of the evidence whether the legal consequences of the arrangements between worker, employment agency and end user included an implied contract of employment between the worker and the end user (Brook Street Bureau (UK) Ltd v Dacas [2004] EWCA Civ 217, [2004] ICR 1437 applied). The requirement for mutuality of obligation could be satisfied where the obligation to remunerate did not lie on the person having control of the worker's work, so long as the remuneration was being provided by the employer, albeit indirectly.
Dacas was not an authority for the proposition that in the circumstances there must be a finding of an implied employment contract &150; it only gave guidance to employment tribunals to consider the possibility that an implied contract might exist. That guidance was correct.
The contract for services between M's company and the agency did not preclude the existence of an implied contract between M and C (Stevedoring and Haulage Services Ltd v Fuller [2001] EWCA Civ 651, [2001] EWCA Civ 651 distinguished).
In this case, it was possible to infer a contract of employment by examining the conduct of M and C. The case was particularly clear because of the existence of a contract of employment between M and E and the transfer of that contract on the takeover.
The decision of the employment tribunal had been correct according to established law.
Appeal dismissed.
HUMAN RIGHTS
Civil procedure - disclosure orders - freedom of expression - journalists - right to respect for private and family life - sources of information - leak of medical records to press
Mersey Care NHS Trust v Robin Ackroyd: QBD (Mr Justice Tugendhat): 7 February 2006
The claimant hospital trust (M) applied for an order against the defendant journalist (J) that he disclose the identity of persons involved in supplying him with confidential information in relation to one of its patients (B).
J had given confidential information regarding B to a national newspaper. It included information supportive of allegations that B had made of his mistreatment by hospital staff, medical information, comments by clinical staff, and comments made to them by B. B had released similar information to the press and was not supportive of M's application.
Nevertheless, M sought disclosure of the source's identity in order to safeguard respect for the private lives of all its patients, and with the aim of protecting patient records. If the source was a hospital employee, it was M's intention to dismiss him, and so deter other employees from doing the same in the future.
The issues to be determined were whether there had been wrongdoing by the source such that the court had jurisdiction to order disclosure of his identity. If so, whether the rights of the hospital's patients under article 8 of the European Convention on Human Rights 1950 to have their medical records kept private could justify the court's interference with J's right to freedom of expression under article 10 of the convention.
Vincent Nelson QC, Jonathan Bellamy (instructed by Capsticks) for the claimant; Gavin Millar QC, Anthony Hudson (instructed by Thompsons) for the defendant.
Held, the threshold requirement for the exercise of the court's jurisdiction to order disclosure of the identity of J's source had been met, M having established that there was wrongdoing in which J was involved for which there was no public interest justification, Norwich Pharmacal Co v Customs and Excise Commissioners (1973) 117 SJ 567 applied.
It was probable that the source worked at the hospital in some capacity and had access to the records for authorised purposes. All those permitted to be in the hospital owed a duty not to disclose information held in the hospital records, and it was plain that nobody had permission from the hospital to disclose the information that had been disclosed. In passing that information to J, the source had breached his duty to M not to disclose.
While there was no breach of the duty to B, given that he had put much of the information in the public domain himself, establishing such a breach was not an essential element of M's case. And while the source's probable purpose was to lend support to B's allegations of mistreatment, there was no public interest justification for his disclosure of the information to J (London Regional Transport v Mayor of London [2001] EWCA Civ 1491, [2003] EMLR 4 followed).
It was necessary to balance the comparative importance of the competing convention rights claimed (Campbell v Mirror Group Newspapers Ltd [2004] UKHL 22, (2004) 2 AC 457 followed). The value of free speech varied from case to case, sometimes attracting a high degree of protection, sometimes little or none. The expression for which J invoked freedom was a kind that attracted the highest protection.
The importance of a free press in a democratic society was well established (R v Home Secretary ex-parte Simms [2002] AC 115, and R v Shayler (David Michael) [2002] UKHL 11, [2002] 2 WLR 754 applied). J had a good record of investigative journalism and it was in the public interest that his sources should not be deterred from communicating with him.
While the protection of medical records was of high importance, there had been no further leaks of such information and, owing to measures taken by the hospital, the risk of such leaks had diminished over time. At the time of the newspaper article, a cloud of suspicion may have hung over the hospital's employees, affecting morale, but it was not at the high end of the scale and it would be difficult to find out who, of those employed there at the time, was still there. The wrongdoing had not been as serious as it might have been, given that the source had been motivated not by financial gain but by the erroneous belief that disclosure was in the public interest.
It had not been convincingly established that there was a pressing social need for J's source to be identified, and an order for disclosure would not be proportionate to the pursuit of the hospital's legitimate aim to seek redress, given the vital public interest in the protection of a journalist's source. The instant decision was the opposite of that reached by the courts in an earlier action for disclosure to M of J's identity. There were significant factual differences between that case and the instant one. Application refused.
TAX
VAT - availability - cars - companies - contract terms - input tax
Customs and Excise Commissioners v Elm Milk Ltd: CA (Civ Div): (Lords Justice Ward, Arden, Moore-Bick): 3 March 2006
Customs and Excise appealed against the decision ([2005] EWHC 366 (Ch)) that company (E) was entitled to recover input tax on the purchase of a motor car intended to be used exclusively for business use.
E was a private company with one director (P) and members of P's family owned it. E had passed a board resolution noting that it was to purchase the car with the intention that it should be used for business purposes only by P, that E did not intend to make the car available for private use, and that any private use would be a breach of P's terms of employment.
E had been informed by its insurers that it was not possible to insure the car solely for business purposes and the insurance policy named a number of drivers who were insured for private use. The car was kept locked in a car-park near E's office and P's home. The keys were kept in E's office.
Customs submitted that the contractual prohibition on private use of the car was not capable of making the car unavailable for private use under article 7(2G) of the Value Added Tax (Input Tax) Order 1992 if the car was in fact available for private use, and that the contractual fetter in the instant case was revocable and ineffective for the purposes of input tax recovery.
Nicholas Paines QC, Kieron Beal (instructed by the Revenue and Customs Solicitor) for the appellant; Oliver Conolly (instructed by Burges Salmon) for the respondent..
Held, the scheme of article 7 was to exclude the right to deduct VAT paid on the purchase of a motorcar to which the order applied. Article 7(2) then created an exception to that exclusion, and article 7(2G) created an exception to that exception.
To bring himself within the exception to the exception, a taxpayer had to show not simply that he did not intend to use the car for private use, but that it was not even available for private use. The concept of availability was not restricted to physical availability, but included also cases of unavailability due to the imposition of effective legal restraints.
It was a question of fact whether, in all the circumstances, a taxpayer intended not to make a car available for private use by whatever means, thus there was no reason why a car could not be made unavailable for private use by suitable contractual restraints, if they were effective.
In this case, the prohibition was backed up by the terms of P's employment and the location of the keys. The VAT and duties tribunal had held that the board resolution was genuine and that P intended to be bound by it. A company could contract with its sole director even when he was also the controlling shareholder and the position was different from that of a sole trader (Customs and Excise Commissioners v Upton T/A Fagomatic [2002] EWCA Civ 520 distinguished).
The terms of the insurance did not mean that an intention not to make the car available for private use could not be shown. In the circumstances, the terms of the insurance were immaterial, even if the tribunal had been mistaken about them.
Appeal dismissed.
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