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Landmark court case over Widowed Parent's Allowance.

Posted by on September 6th 2018 in Blog Posts

Landmark court case over Widowed Parent's Allowance.

In the matter of an application by Siobhan McLaughlin for Judicial Review (NI) [2018] UKSC 48

On the 30th August 2018 the Supreme Court allowed Ms McLaughlin’s appeal determining that certain requirements of the Widowed Parent’s Allowance (Northern Ireland) was discriminatory and breached the European Convention on Human Rights (“ECHR”).

Facts

Ms McLaughlin’s partner passed away in January 2014. They had lived together for 23 years and had four children. The Northern Ireland Department of Communities rejected Ms McLaughlin’s claims for Widowed Parent’s Allowance (WPA) because they were not married.  Ms McLaughlin subsequently applied for a judicial review of the...

When Legal Advice Privilege is Removed

Posted by on September 4th 2018 in Blog Posts

Legal advice privilege applies to communications between a client and their lawyer, and communications which have come about for the purpose of giving or receiving legal advice. If legal advice privilege applies, then this information cannot be disclosed during the course of legal proceedings and is confidential.

The rule is not absolute though. Legal advice privilege is lost if the purpose of the communication is to further criminal or fraudulent activity. This is referred to as the “iniquity principle” or the “fraud exception” both of which are based on public policy.

A recent Employment Appeal Tribunal (EAT) case considered whether legal advice...

Menopause and Work - Disability, Wellbeing or Just Caring?

Posted by on August 30th 2018 in Blog Posts, Employment

Menopause and Work - Disability, Wellbeing or Just Caring?

A case in Scotland (Ms Mandy Davies v Scottish Courts & Tribunals Service) held that menopause could be considered a disability under s.15 of the Equality Act; whereby a person is treated unfavourably because of something arising in consequence of the disabled person’s disability and the employer cannot show that the treatment is a proportionate means of reaching a legitimate aim.

In this particular case, the unfavourable treatment was dismissal. In brief, the claimant had some medication that she thought had been in the water jug she was drinking from and the water was then given to two men in the...

Islamic marriage ruled valid under English law

Posted by on August 22nd 2018 in Blog Posts, Family

Islamic marriage ruled valid under English law

In a ruling which could have far reaching implications a High Court Judge has ruled that an Islamic faith Marriage constituted a valid marriage ceremony under English Law

Nasreen Akhter and Mohammed Shabaz Khan had an Islamic marriage ceremony known as a Nikah in 1998.

Akhter and Khan became estranged and Akhter decided to make an application for a divorce after 20 years of marriage. Akhter argued that the Nikah ceremony constituted a valid marriage and she was therefore entitled to a divorce. Khan opposed the divorce stating that the Nikah did not constitute a legal marriage under English Law and was...

Deathbed Marriages

Posted by on August 22nd 2018 in Blog Posts, Family, Private Client

A coalition of legal organisations call on the Government to increase protections for cohabiting couples following a rise in deathbed marriages

In a letter to the Guardian a coalition of legal organisations and charities including Resolution, the Bar Council, the Law Society, Relate, Rights of Women, OnlyMums and OnlyDads have urged ministers to tackle the myth of common law marriage and update legislation.

Cohabiting couples

Cohabiting couples are the fastest growing family type in the UK. Two thirds of cohabiting couples do not know that there is no such thing as common law marriage. Cohabiting couples often mistakenly believe that they...

Practitioner’s Insights – The Risks of Ignoring the Issue

Posted by on July 31st 2018 in Blog Posts, Employment

Practitioner’s Insights – The Risks of Ignoring the Issue

As you can imagine, we deal a lot with issues where the employer has “reached the end of their tether” in managing a problem like capability.  Sometimes we are involved throughout a process, which will either lead to an improvement in performance or potentially dismissal.  Others however, we are called in at the latter stages to advise on the capability procedure at the point at which dismissal is contemplated.  Often, the reluctance of a manger to have the open and frank discussion at the outset, leads to a situation whereby the individual may struggle to accept any failings in their...

Holiday Pay - NHS Payments

Posted by on July 31st 2018 in Blog Posts, Employment

Flowers and Others v East of England Ambulance Trust: NHS Contractual Terms Require Non-Guaranteed and Voluntary Overtime to be Included in Holiday Pay Calculations

This case arose from the Claimant employees, employed by the Trust in a range of roles concerning the provision of ambulance services, contending that the calculation of their holiday pay should take account of both non-guaranteed overtime and voluntary overtime.

The Employment Tribunal (“ET”) allowed the contractual claims in respect of non-guaranteed overtime, but dismissed the claims in respect of voluntary overtime, with the ET accepting the Trust’s argument that voluntary overtime was in a different category....

Patel v Folkestone Nursing Home Ltd

Posted by on July 31st 2018 in Blog Posts, Employment

Patel v Folkestone Nursing Home Ltd

In Patel v Folkestone Nursing Home Ltd [2018] EWCA Civ 1689 the Court of Appeal has held that there was no dismissal where a contractual disciplinary appeal was successful.

The Court of Appeal has upheld the decision of the Employment Appeal Tribunal that there was no dismissal where an employee who, following his appeal under a contractual disciplinary procedure, was told that the decision to dismiss him had been revoked. This was despite the appeal only addressing one of the two disciplinary allegations that had resulted in his dismissal.

The Claimant was a care assistant, dismissed over two charges of misconduct. He appealed under a...

Owens v Owens [2018]: Wife's appeal to divorce husband fails

Posted by on July 27th 2018 in Blog Posts, Family

Owens v Owens [2018]: Wife's appeal to divorce husband fails

The Supreme Court has ruled that a woman seeking to divorce her husband must remain married to him until 2020.

Mr and Mrs Owens were married in 1978 and have two adult children. In May 2015 Mrs Owens filed a divorce petition which is the subject of the current proceedings. The petition was based on s.1 (2)(b) of the Matrimonial Causes Act 1973 and alleged that the marriage has broken down irretrievably as Mr Owens had behaved in such a way that Mrs Owens could not reasonably be expected to live with him.  Mr Owens refused to consent to a...

Court of Appeal Decision: 'Sleep-In' Payments not subject to National Minimum Wage

Posted by on July 23rd 2018 in Blog Posts, Employment

Court of Appeal Decision: 'Sleep-In' Payments not subject to National Minimum Wage

In its consideration of two similar cases involving residential care home workers, Royal Mencap Society v Claire Tomlinson Blake and John Shannon v Jaikisham and Prithee Rampersad (t/a Clifton House Residential Home), the Court of Appeal held that employees who sleep overnight as part of their duties are only entitled to the National Minimum Wage (“NMW”) while they are awake and working, not for the entire duration of their sleep-in shift.

The Royal Mencap Society went to the Court of Appeal in March this year to challenge the Employment Tribunal ruling from 2016, which had been upheld on Appeal to the Employment...

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