Radical Islamist cleric Abu Qatada has been released on “very restrictive” bail conditions after more than six years in Long Lartin prison. Mitting J ruled that in the light of the recent Strasbourg ruling that Qatada could not be returned to Jordan, his detention could not continue. The decision caused considerable controversy; the Home Office criticised the decision but attorney general, Dominic Grieve said courts could not allow people to be held in indefinite detention without trial.

Councils nationwide will have to review their practice of holding prayers during formal meetings following a court victory by the National Secular Society. Mr Justice Ouseley ruled that Bideford council in Devon had no statutory powers to hold prayers during council meetings. The communities secretary, Eric Pickles, has said that the judgment was “surprising and disappointing”.  Mr Justice Ouseley ruled the while prayers were not lawful under section 111 of the Local Government Act 1972 prayers could be said as long as councillors were not formally summoned to attend.

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This post was originally published on the 11KBW Employment Law Blog, and is reposted here with thanks.

Ever since the judgment of Lord Hoffmann in Lawson v Serco Ltd [2006] UKHL 3; [2006] ICR 250, the territorial scope of the protection from unfair dismissal contained in the Employment Rights Act 1996, s 94(1) has been a matter of some debate. Lord Hoffmann famously drew distinctions between those who worked in GB and those who worked abroad (the latter being outside the scope of s 94); peripatetic employees who were based in GB (within the scope); and expatriate employees who are posted abroad for a GB company or who work in an enclave abroad, such as an embassy, who are also caught by s 94.

The difficulty, as tribunals quickly found, is where the facts of a case do not meet any of those categories. What then? This was the issue before the Supreme Court in Ravat v Halliburton Manufacturing and Services Ltd [2012] UKSC 1. Lord Hoffmann, in Lawson at [40], had suggested that his categories were not exclusive, but that other cases would need “equally strong connections”. Lord Hope, in Ravat at 25, noted the complaint of the tribunal below that little appellate guidance had been provided and rather optimistically suggested that the judgment of Lady Hale in Duncombe v Secretary of State for Children, Schools and Families (No 2) [2011] UKSC 36; [2011] ICR 1213 had provided clarity when she said, at [8], that one need not torture cases to fit the existing categories.

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On appeal from: [2010] EWCA Civ 698.

The respondent hospital had, despite various medical reports assessing her as a moderate to high suicide risk and concerns from her parents, negligently agreed to a period of home leave for the appellants’ daughter, during which she committed suicide. The issues for the Supreme Court to decide included whether ECHR, art 2 imposed an obligation on the State to take preventative measures to protect a voluntary mental patient against a risk of suicide, whether the appellants were “victims” under ECHR, art 34 and the Human Rights Act 1998, s 7(7), and, if so, had they lost that status on settlement of a negligence claim brought on the same facts, and whether the s 7(5) time limit for raising a Human Rights Act claim should be extended.

The appeal was allowed unanimously; the Supreme Court held that the operational obligation under art 2 was owed to a voluntary mentally ill hospital patient, the appellant parents were victims for the purpose of art 34 and that they had not lost this status by virtue of the settlement of their negligence claim, and additionally that the claim was not time barred as the appellants had acted reasonably in not bringing proceedings sooner.

The admitted negligence of the respondent in its treatment should not be assimilated to the line of case law pertaining to negligent hospital treatment (in which case there would be no duty under article 2). While there were differences between detained and voluntary psychiatric patients, these should not be exaggerated. The appellant’s daughter was admitted to hospital because she was a real suicide risk. The Trust assumed responsibility for her; she was under its control. The difference between her position and that of a hypothetical detained psychiatric patient would have been one of form not substance.

For judgment, please download: [2012] UKSC 2
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

The question at the heart of this appeal relates to ongoing attempts by claimant employees to widen the remedies available to them on dismissal and, in particular, to avoid the application of the statutory cap on compensation.

In the previous decision of Johnson v Unisys Ltd [2001] UKHL 13; [2003] 1 AC 518 the House of Lords held that a claimant employee seeking damages for loss arising out of breach of an implied term of their contract in relation to their unfair dismissal would only be able to recover those damages in the employment tribunal under the remedies stipulated in the Employment Rights Act 1996 and not under the standard remedy for breach of contract in the civil courts. The remedy for the claimant in such a case would therefore be subject to the statutory cap for unfair dismissal claims (currently at £72,300) and other factors such as contributory fault could also reduce the total award that the claimant receives. Where the claimant was arguing that their loss as a result of the breach of the implied term was much greater (for example, a career long loss, as a result of destruction of their career) this was a considerable narrowing of the remedies available to them.

However, claimants continue to be creative in their approach in terms of challenging the scope of the Johnson decision. As the judgment in Johnson was in relation to breach of an implied term of the employee’s contract, the main question in the Edwards and Botham case was whether the reasoning in Johnson precluded recovery of damages for loss in the civil court arising from the unfair manner of a dismissal in breach of an express term of an employment contract.

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On appeal from: [2010] CSIH 52.

In the light of Lawson v Serco [2006] UKHL 3, the Court considered whether an employment tribunal had jurisdiction in relation to individuals resident in Great Britain and employed by a British company, but who travelled to and from home to work overseas.

Held, dismissing the employer’s appeal against the decision that an employment tribunal had jurisdiction to hear an unfair dismissal complaint. The Employment Rights Act 1996, ss 94(1) (right not to be unfairly dismissed), 230(1) (definition of “employee”) did not contain any geographical limitation, although some limitation must be implied. Distinguishing Lawson, the question of law was whether s 94(1) applied to this particular employment. It was not for the courts to lay down a series of fixed rules where Parliament had decided not to do so. Their role was to give effect to what Parliament may reasonably be taken to have intended by identifying and applying the relevant principles. The question of fact was whether the connection between the circumstances of the employment and Great Britain and with British employment law was sufficiently strong to enable it to be said that it was be appropriate for the employee to have a claim for unfair dismissal in Great Britain.

For judgment, please download: [2012] UKSC 1
For the Court’s press summary, please download: Press Summary
For a non-PDF version of the judgment, please visit: BAILII

The Supreme Court launched its twitter feed today, and is proving to be popular, with 2,782 followers by mid-afternoon. Those hoping for live updates of what the justices are having for breakfast may be a little disappointed; the Supreme Court  twitter policy states that:

“You can expect 2-3 tweets a week covering the cases, judgments, and corporate announcements of the Supreme Court.”

There was a flurry of tweets this morning though, as the UKSC used the feed to tweet live from the swearing in of Lord Reed. Lord Reed’s appointment follows the death of Lord Rodger last year and continues the tradition that two of the court’s justices have experience of the Scottish legal system. The Supreme Court now has its full complement of twelve justices.

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Lord Reed was sworn in as a Supreme Court Justice earlier today.

Lord Reed is the fourth Justice to be sworn in since the Supreme Court was inaugurated in October 2009.  His appointment, announced on 20 December 2011, follows the death of Lord Rodger of Earlsferry last year and sees a continuation of the tradition, begun in the House of Lords, that two of the Supreme Court’s Justices have comprehensive experience of the Scottish legal system.

Lord Reed will begin sitting tomorrow (Tuesday 7 February) among a panel of five Justices sitting as the Judicial Committee of the Privy Council hearing a planning dispute case over the commercial development of ‘New Kingston’ in Jamaica, in J & O Operations Limited and another; Eloise Mulligan and Grace Wong (Appellants) v. The Kingston & Saint Andrew Corporation (Respondent) and cross-appeal.

Lord Reed has been a senior judge in Scotland for 13 years being a Senator of the College of Justice since 1998.  He was admitted to the Faculty of Advocates in July 1983 where he undertook a wide range of civil work. He was appointed to the Bench in 1998 and was promoted to the Inner House in January 2008.  During 1999 he sat as an ad hoc judge of the European Court of Human Rights and has sat in both the Judicial Committee of the Privy Council.

The occasion is being marked with the Court’s arrival on micro-blogging site Twitter.  The Supreme Court has allowed Tweeting from its courtrooms on most occasions since February 2011, but today marks the first time that the Court itself has ‘tweeted’.

Starting on Tuesday 7 February 2012 is the two day hearing  in front of a panel of seven (Lady Kerr and Lords Phillips, Walker, Kerr, Brown, Dyson and Wilson) of R (KM) (by his mother and litigation friend JM) v Cambridgeshire County Council. The case concerns a 26 year old man with a range of serious mental and physical disabilities which mean he requires significant support in his daily life, and the respondent council are responsible for the provision of his care. Rather than providing direct services the council provides funding, determined by application of a “Resource Allocation Scheme”, and in severe cases such as that of the applicant, additional funding is allocated using an “Upper Banding Calculator”. The applicant’s support needs were independently assessed as costing £157,067. The respondent agreed with the assessment but not the level of funding, awarding the applicant £84,678 annually (comprising the maximum allowable funding through the RAS of £61,000 plus an additional amount). It is for the Supreme Court to determine (1) whether R v Gloucester CC ex p Barry [1997] UKHL 58 was correctly decided and, in consequence, whether Resource Allocation Schemes are a legitimate means for local authorities to apply to determine funding to be made available to persons in need, (2) if Barry was correctly decided, and Resource Allocation Schemes acceptable, what level of explanation must the local authority provide of the sum awarded and (3) whether the respondent’s decision in this case was irrational because the amount awarded was manifestly insufficient to meet the appellant’s assessed eligible needs. Case details are available here.

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The hearing of the Assange case in the Supreme Court dominated headlines this week. Assange appealed against his extradition to Sweden arguing the arrest warrant was “invalid and unenforceable”, and that the Swedish prosecutor who issued his European Arrest Warrant did not have the authority to do so. You can read the background to the case here.

The Justice Secretary is to reform the 1974 Rehabilitation of Offenders Act in order to shorten the period during which former offenders are obliged to tell potential employers about their criminal past. The period of time under which the convictions of medium-term prisoners will be ’spent’ reduced from 10 years to four. The convictions of short-term prisoners, serving sentences up to six months, will be spent after two years instead of the current seven. The justice secretary also said this week that sending more people to prison for longer sentences in order to cut re-offending “does not work”.

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The Supreme Court begins a two-day hearing in the high-profile case of Julian Assange v Swedish Prosecution Authority today.

The background to the appeal

The appellant, Julian Assange, is the founder of Wikileaks. Assange is the subject of a European Arrest Warrant (EAW) issued by the Swedish Prosecution Authority, which sets out allegations of four offences of unlawful coercion and sexual misconduct, including rape. Assange surrendered himself for arrest in the UK and, following a hearing, his extradition to Sweden was ordered. Assange appealed to the Divisional Court against his extradition on four grounds. He lost on all four grounds and the order requiring his extradition was upheld.

The High Court refused Assange permission to appeal to the Supreme Court but certified one issue raised by his case as being of ‘general public importance’. The Supreme Court subsequently granted permission to appeal on this issue. [read more]