Public law is the law which governs our relationship with the government, and public organisations. It includes administrative and constitutional law, and those public organisations include housing associations, county councils, and utility or transport companies.

Individuals and businesses can take legal action against the government or public organisations in order to protect or assert rights which are taken away from them or restricted. Often that legal action takes the form of an application for Judicial Review of a particular decision or outcome, but it is often the case that other sorts of claim can be pursued

Michelmores act for and against different government or public organisations in a range of matters.

The Construction Leadership Council (CLC) published its new guidance on the 21 October 2021, entitled “COVID-19 Contractual Guidance”. The purpose of this guidance is to provide a suite of documents which show contractual best practice and record keeping to achieve collaborative settlements. It also provides guidance and suitable drafting which can be used in contracts in respect of future projects. In effect, this guidance has updated and pulled together the information and resources previously published on the basis that the consequences of the pandemic and COVID-19 are ongoing.

The guidance strongly recommends that the construction sector approaches the difficulties arising from the pandemic in a constructive and collaborative manner and that risks are proportionately shared.

For those involved in the formation and agreement of contracts for future projects, the CLC’s ‘Template 3’ is of particular interest. This was first published in July 2021 but has now been updated. The Template is relevant for both the JCT and NEC suite of contracts. The Template provides a number of options and draft clauses to choose from. The choice of which option is chosen is dependent upon the risk profile agreed between the parties. For example, Option 1 only allows for an extension of time whereas option 4 allows an extension of time and compensation if the circumstances in respect of COVID-19 change from those as at the ‘base date’.  There is also a clause which allows the parties to terminate the contract if the works are suspended beyond a specified period.

As with all pre-drafted clauses, it is important to review them in some detail and to apply a number a practical scenarios in order to establish whether the clauses properly address the issues. For example, what are the contractual consequences if there is an outbreak of COVID-19 on site which has the effect of reducing or entirely excluding the workforce on-site? Is this a risk which the contractor is in a better position to manage and therefore, should it be treated as a ‘contractor risk’?

If, in the example above, the contractor is entitled to make a claim then it is important that there is sufficient evidence available to show that the delay was actually caused by COVID-19. CLC’s third updated guidance entitled “Record Keeping” addresses this point. It refers to the Society for Construction Law’s Delay and Disruption Protocol (2^nd edition) which emphasises the importance of proper and accurate record keeping. The guidance states that record keeping should be proportionate and in the context of the agreed COVID-19 clauses. Within this context, CLC’s fourth guidance entitled “COVID-19 Impact Assessment Toolkit” provides a construction business with a methodology to demonstrate that COVID-19 has had an adverse impact on its overall business, rather than each specific project. The purpose of methodology is not to replace the strict evidential requirements under the construction contract but to provide technical evidence that COVID-19 has had an impact and can be used in a collaborative negotiation situation.

The CLC has been the source of a number of invaluable resources during the pandemic. For those of us who were involved in advising during the early stages of the outbreak, the guidance and publications were essential; setting the tone of how the construction sector should work through the pandemic. This latest guidance has updated and brought together the information needed when considering how the subject of COVID-19 should be approached now in respect of both ongoing and future projects.

A copy of the guidance can be found here.

The 19th Michelmores Property Awards were held on Thursday 4 November with a glittering awards ceremony and gala dinner at Sandy Park Conference Centre in Exeter. The evening was hosted by former Exeter Chiefs rugby player, Chris Bentley and celebrated outstanding property and construction projects in Bristol, Cornwall, Devon and Wiltshire across ten categories.

The Box in Plymouth took home the coveted Building of the Year award as well as the prize for Leisure and Tourism Project of the year. The exciting and much-lauded project restored and transformed three listed buildings in Plymouth to provide an innovative visitor attraction and a sustainable home for at risk collections and artefacts. Its inspirational and accessible exhibitions successfully connect the people of Plymouth with their world-class heritage.

Market Hall, also in Plymouth won Heritage Project of the Year. The highly successful project saw the part-restoration, part-new development of an abandoned building in Devonport. The scheme embraces the old and the cutting edge whilst keeping the needs of the community at its heart. Alongside co-working spaces, the Hall is home to a 15-metre diameter immersive technology dome – the first of its kind in Europe.

The new Deaf Academy, built on the site of a former educational facility in Exmouth was awarded Project of the Year (over £5m). It was applauded for successfully meeting the complex needs of its occupants. The project has regenerated and revitalised part of the town, creating jobs and re-energising an abandoned building. The judges commented on the team’s ability to create an accessible and welcoming space with demanding user interpretations to create a building of merit.

Langarth Garden Village on the edge of Truro in Cornwall won in the Masterplanning for the Future category. The scheme was praised for its ambitious, place-making vision to create a brand-new community of 10,000 people in a vibrant and inclusive environment.

Sandpit Road in Calne, impressed with its highly commendable ‘hub’ house approach which gives residents the freedom to adapt their home over time, to suit their changing needs. The internal layout of the homes facilitates this whilst retaining formal and informal entrances and adaptable storage. Praise was also given for the scheme’s bespoke nature and the finish of the external design.

This year’s John Laurence Special Contribution Award, which recognises and celebrates outstanding property and construction professionals and organisations in the region, was given to Andrew Maynard for his instrumental role in championing the commercial and residential property sectors, in Exeter, the SW and beyond. Andrew is widely regarded in the business community as being a tour de force for the sector. He has led the way with his commitment, energy and ambition for all things property, as well as being an exemplar in bringing people together, fostering and nurturing relationships through networking, and providing excellent client care.

The other winning projects for 2021 include: the Digital and Data Centre at Exeter College in Devon – Education Project of the Year; Sideshore in Exmouth, Devon – Project of the Year (under £5m); and Wapping Wharf Living (Phase 2) in Bristol – Residential Project of the Year (36 units and over).

Of this year’s Awards, Emma Honey, Head of Property at Michelmores LLP said:

“It was fantastic to bring together members of the South West property and construction industry to celebrate the winners of the Michelmores Property Awards 2021. Despite challenging conditions, the sector has continued to thrive and shown itself to be a robust and innovative part of the region’s economy. My congratulations to our winners on their Awards which are thoroughly well deserved. My thanks to our panel of esteemed judges for their ongoing support and to our sponsors without whom, this event would not happen.”

This year’s winning projects:

Specially Commended Projects

NHS Nightingale Hospital Bristol – submitted by Kier Regional Building

NHS Nightingale Hospital Exeter – submitted by BAM Construction

Plymouth Lighthouse Labs – Kier Regional Building and University Hospitals Plymouth NHS Trust

True partnership

Led by Ben Hogan and key partner David Cave, our award-winning Projects & Infrastructure team is ranked Band 1 nationally by Chambers & Partners. Our team consists of lawyers who are experts in the establishment, management and termination/handback of infrastructure projects in a broad variety of sectors. In addition, our team has vast experience of project finance transactions, facilities management services and large-scale governmental and commercial projects.

Our team draws on the expertise of specialist lawyers from other teams within the firm, including procurement, construction, real estate, employment, corporate and banking, who have significant experience of working on infrastructure project transactions. This is key to us providing the seamless and first class service our clients expect.

We are renowned for building strong and lasting relationships with our clients and commence every client relationship with the goal of becoming and remaining a trusted adviser throughout the life cycle of the relevant project.

Sustainable solutions for sustainable infrastructure

Having acted for a wide range of procuring authorities, sponsors, service providers and lenders, we understand the many challenges facing project stakeholders in ensuring that social and economic infrastructure projects deliver the service outcomes required by the procuring entity, as well as projected returns to lenders, investors and subcontractors.

However, we also understand the wider societal and environmental context in which our clients operate and are committed to helping our clients to find ways to deliver truly sustainable infrastructure assets that achieve their social or economic purpose, are energy efficient, resilient and are fully integrated with related systems and networks.

Despite attempts at simplification by government, navigating the planning system remains a potentially time consuming and costly process. Our planning solicitors are experienced at helping clients through this process, whether at the strategic level as the first steps are made towards having a site allocated, helping to shape planning applications, negotiating planning obligation agreements or advising in relation to appeals and legal challenges at the decision making stage.

Our clients include national and regional house builders, commercial developers, government bodies, planning authorities, private sector companies and landed estates.

Rooney v Leicester City Council EA-2020-000070-DA and EA-2021-000256-DA

Since our recent article on the menopause (found here), a new Employment Appeal Tribunal (EAT) decision has explored the conduct of Tribunals when assessing menopause as a disability.

What constitutes a disability under the Equality Act 2010 (EqA)?

Under the EqA a person has a disability if:

• They have a physical or mental impairment; and
• The impairment has a substantial and long-term (i.e. it has or is likely to last for at least 12 months or for life) adverse effect on their ability to carry out normal day-to-day activities.

With the symptoms of menopause including hot flushes, sweats, difficulty sleeping, headaches, anxiety, joint stiffness and palpitations, it is likely that, in certain cases, this will meet the test for disability in law.

What are the facts of the case?

The Claimant, Ms Rooney, worked for Leicester City Council as a social worker until her resignation. Following her resignation, Ms Rooney brought a claim for constructive dismissal, but the claim form included an acceptance from her solicitors that her menopause symptoms did not amount to a disability under the EqA.

Ms Rooney then presented a second claim for disability and sex discrimination, harassment and victimisation in relation to her menopause symptoms, which she claimed had been ongoing for two years and included insomnia, fatigues, confusion, light-headedness, confusion, stress, depression, anxiety, palpitations, memory loss, migraines and hot flushes. Ms Rooney highlighted the negative impact this had on her life, that her GP had prescribed hormone replacement therapy and that she had been referred to a consultant at a specialist menopause clinic.

What did the Tribunal decide?

At a preliminary hearing Ms Rooney applied to remove the statement in her claim form that conceded that she was not disabled. The Tribunal subsequently held at a second preliminary hearing that Ms Rooney did not have a disability and her claims were struck out.

Ms Rooney appealed to the EAT.

What did the EAT decide?

The EAT held that the Tribunal erred in law in deciding Ms Rooney was not disabled, and striking out her discrimination claims, without sufficient analysis and or providing sufficient reasons for the decision.

The EAT based this decision on the Tribunal erring in:

• Balancing what Ms Rooney could and could not do from day to day (which contradicted previous case law);
• Failing to consider the meaning of ‘long-term’ under the EqA in assessing whether Ms Rooney was disabled;
• Deciding that Ms Rooney’s menopause symptoms did not have more than a minor or trivial effect on her life;
• Finding that Ms Rooney was not disabled based on the fact that the medical evidence did not support her impact statement and the fact that her original claim stated that she was not disabled;
• Finding that there was nothing to suggest that Ms Rooney’s physical symptoms were long-term or had a substantial effect on her day-to-day activities.

The EAT also upheld the appeal against the strike-out of the sex discrimination, harassment and victimisation claims.

The case is yet to be redecided by the Tribunal.

What can Employers do to Address Menopause in the workplace?

This decision highlights the impact that the menopause can have on workers and indicates that there is limited legal precedent for cases in this arena.

Websites such as Unison and ACAS provide useful tips for employers, such as:

• Implementing flexible working to include comfort breaks throughout the day;
• Providing greater support from line management;
• Maintaining a clear and up to date policy on menopause;
• Ensuring easy access to facilities; and
• Implementing reasonable adjustments where there is a negative impact on the employee’s working life.

Employers should aim to keep up to date with any developments in the current Parliamentary Inquiry and may consider seeking legal advice on policies and best practice when dealing with menopause in the workplace.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Rachael Lloyd to discuss any issues you are facing.

The team has significant experience of complex, high-value mixed use schemes, from the site acquisition, planning, site set-up, development financing and construction, through to the disposals of the residential units and the commercial space. The correct legal structure to accommodate early marketing of the new homes, whilst retaining flexibility for the design, letting and disposal of the economic interests in the commercial parts, is essential.

We have delivered these structures at short notice in order to accommodate foreign exhibition deadlines.