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.
Under the EqA a person has a disability if:
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.
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.
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.
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:
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.
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:
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.
On 22 July 2021, the UK Government implemented the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (the “Regulations”). From 11 November 2021, the Regulations require registered persons of all Care Quality Commission (“CQC”) registered care homes (which provide accommodation together with nursing or personal care), including the registered manager, to ensure that a person does not enter the indoor premises of a care home unless they have been fully vaccinated.
Whilst certain exemptions do apply, essentially, the Regulations require any employees, agency workers or other contractors, who may be engaged to enter a relevant care home, to be fully vaccinated by 11 November 2021. To comply, this means that affected individuals will need to have had their first vaccination on or before 16 September 2021.
From 11 November 2021, CQC registered persons are under an obligation to secure that no unvaccinated person enters the care home unless:
Visitors can demonstrate their vaccination records using the NHS COVID Pass service either via the NHS App, the NHS website or the NHS COVID Pass letter.
It is important to note that those who are medically exempt will not have to be vaccinated and, similarly, any visitors of care home residents will also be excluded from the new requirements.
What happens if employees do not have the vaccine by the deadline?
As it will not be legal for employees or workers to continue their normal duties on the care home premises until both vaccinations have been received, employers should start to consider and implement procedures to manage staff who do not have both vaccines by the implementation date. It is best practice to involve staff in this preparation.
The relevant Government guidance (here) (“Guidance”) emphasises that employers should explore all options available to staff who do not have proof of the vaccine and do not fall within an exemption. This may involve redeployment to alternative roles, such as those without direct contact with residents, or a temporary cessation of duties. Whilst paid or unpaid leave cannot be a long-term solution, as the Regulations do not have a time limit, this may be considered appropriate where a worker has simply not yet completed the full vaccination course by 11 November 2021 (but intends to do so) or where there are delays in obtaining evidence of medical exemption.
Alternatively, the Guidance also makes it clear that, as long as the employer follows a fair process, the Regulations may provide a fair reason for dismissal. Steps to consider before taking a decision to dismiss are helpfully outlined in the Guidance. It is unlikely that the dismissal will be considered fair in circumstances where the employee or worker is waiting to get their vaccine. However, it may be appropriate where an individual outright refuses to get the vaccine and alternatives to dismissal have been properly explored with them in advance.
Importantly, the Guidance also clarifies that employers will be protected from discrimination claims on the grounds of age, disability, religion or belief and will not breach the Equality Act 2010 on these grounds if they are following the Regulations. However, it will still be crucial that employers follow a fair procedure to ensure that the dismissal is carried out in a fair and non-discriminatory way (even where an employee does not have two years’ service). This protection does not extend to allegations of discrimination on the grounds of race, sex, sexual orientation, pregnancy and maternity, gender reassignment, marriage or civil partnership.
The Regulations clearly place significant requirements on care workers. As a result, it is perhaps unsurprising that, on 9 September 2021, two care workers issued judicial review proceedings. Judicial review can be sought to challenge the lawfulness of a decision made by a public body. In this case, the proceedings challenge the mandatory vaccination requirement implemented by the Regulations.
The claim is reported to have been brought on five grounds, including that the Regulations are disproportionate, incompatible with laws prohibiting the enforcement of mandatory vaccines and the European Convention on Human Rights, and that they interfere with the public’s right to “bodily integrity”. There are also concerns that they will lead to shortages in care workers.
Whilst it is unlikely that any decision will be given before 11 November 2021, if the proceedings are successful, the Regulations may be deemed unlawful and amended insofar as is necessary.
At this point in time, the Regulations remain in force and employers should proceed on the basis that they will remain in force on 11 November 2021. As such, employers should ensure that they:
We will monitor the judicial review proceedings and circulate an update should the position for care homes change. In the meantime, employers are strongly advised to familiarise themselves with the Guidance.
This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such.
This article, authored by Andrew Oldland QC and barrister Nicola Canty, from the Firm’s Marine Regulatory team, has been featured in the July edition of Marine and Maritime Gazette.
The Marine Management Organisation (MMO) issues ‘marine licences’ under Part 4 of the Marine and Coastal Access Act 2009 (MCAA). A marine licence is required for licensable activities taking place up to the mean spring high-tide water mark. Licensable activities include the construction, alteration or improvement of any works in or over the sea, or on or under the seabed (section 66(1)(7)) and the removal of any substance or object from the seabed (section 66(1)(8)); this will include most marine maintenance activities unless being carried out by or on behalf of a harbour authority.
Licences
In England and Wales it is possible to submit a single application for a 10 year licence that applies to multiple sites where the activities applied for are generally low impact maintenance activities. Applicants should be able to justify why the proposed region can be considered an ecologically coherent area.
A regional licence may be suitable for maintenance to moorings, pontoons and minor beach re-profiling which are not covered by the Marine licensing (Exempted Activities) Order 2011 or Articles 25 (Mooring and aids to navigation), 25A (pontoons) and 27 (launching of vessels) of MCAA. However, a regional licence would not be suitable for licensable dredging activities and a single site marine licence application should be submitted in those circumstances.
The intention is that a regional licence application would reduce the administrative burden, time and cost of applying for numerous licences separately. The various advisory bodies would also have the opportunity to address their concerns and propose conditions to the proposed licence in an efficient manner that would make best use of the resources available.
As with single site applications, a Habitats regulations assessment is generally required and the effects of the project on marine conservation zones must be considered. Other required considerations would include the Marine Policy Statement and any Marine Plans in place, in addition to the Water Framework Directive (though a simple screening assessment may be sufficient to satisfy this requirement). In addition, depending on the scale of the regional licence application, it is likely that a sustainability appraisal would be necessary.
Process
A pre-application consultation meeting with statutory consultees such as Cefas, Natural England and the Environment Agency is invaluable. With a larger scale, multi-site application, the opportunity to engage with statutory consultees in the pre-application consultation stage is a useful opportunity to ensure the final application contains sufficient information to address any concerns raised and to enable a discussion of suitable licencing conditions. It is also possible to obtain advice from Natural England’s Discretionary Advice Service (DAS); Natural Resource Wales (NRW) provides similar pre-application advice, though NRW does not charge for their input. Regional licence applications must be advertised locally and the application must be available for public consultation for 28 days. The MMO would forward any public responses for the applicant to comment.
Michelmores has recently advised on the first regional marine licence issued by the MMO. Our marine team, led by Andrew Oldland QC, is able to advise on all aspects of obtaining, opposing and implementing marine licences, including emergency, fast-track, single site, and regional marine licences.
This article, authored by Andrew Oldland QC and barrister Nicola Canty, from the Firm’s Marine Regulatory team, has been featured in the December edition of Marine and Maritime Gazette.
Current conservation legislation protects a number of marine wildlife species from intentional or reckless disturbance, taking, harming or killing, and possession or sale of some species. A marine wildlife licence must be obtained if you intend to carry out an activity that would affect a UK or European protected species and is otherwise prohibited under conservation legislation.
Protected species include certain bird species, marine turtles, dolphins, porpoises and whales, seals, and certain species of fish and invertebrates. The legislation in this area can be complex and is spread over a number of different statutes. In general, the Conservation of Habitats and Species Regulations 2010 and the Wildlife and Countryside Act 1981 are the main pieces of legislation for protecting marine wildlife in the England and Wales inshore region.
The Marine Management Organisation (MMO) licenses activity in English water and Welsh offshore waters, with Natural Resources Wales (NRW) licensing activities in the Welsh inshore waters. In England and Wales, the police and the MMO are the main wildlife enforcement bodies. Wildlife offences are currently punishable by a fine or up to 6 month’s imprisonment for the most serious offences.
One example of when a wildlife licence may be required relates to marine development projects that involve piling activities which would result in temporary disturbance to cetaceans from the noise emitted during construction. Where a European Protected Species is found on site once a project is already underway, this may lead to delays whilst a wildlife licence is applied for, so as to avoid committing a criminal offence.
A wildlife licence would not normally be required if there is a negligible risk of an offence being committed, or if the MMO considers that the proposed mitigation would render any such risk negligible. The MMO will often seek to work with applicants to introduce measures within the marine licence itself to mitigate against any potential impact on the relevant wildlife concerned.
In any event, a wildlife licence will only be issued as a last resort. Licences will usually only be issued where there is no satisfactory alternative and the activity concerned would not be detrimental to the maintenance of the population of the species at a ‘favourable conservation status’.
The MMO currently states that wildlife licence applications take 13 weeks to process. During this time, the MMO would consult with Natural England, the Joint Nature Conservation Committee (JNCC) or both, as appropriate. It should also be noted that there is no appeals mechanism in relation to decisions over the grant of wildlife licences. If an applicant or an objector wanted to challenge the grant or refusal of a wildlife licence then they would have to challenge the decision by way of judicial review.
Potential applicants should also be aware that the Law Commission has recently completed its wildlife law project to review and reform the ‘complex patchwork of overlapping and sometimes conflicting provisions’ of wildlife law. On 10 November 2015 the Law Commission published a draft Wildlife Bill. The intention is to provide a unified licensing regime to reduce complexity for prospective applicants.
This draft Bill contains several significant changes to the status quo which would rationalise much of UK wildlife law in one place, but also intends to ensure that the UK is meeting its obligations under international conventions such as the Bonn Convention (the Convention on the Conservation of Migratory Species of Wild Animals) and the Bern Convention (the Convention on the Conservation of European Wildlife and Natural Habitats), as well as the European Wild Birds and Habitats Directives.
The European Maritime and Fisheries Fund (EMFF) is the main fund for the European Union’s maritime and fisheries policies for 2014-2020. It is one of five European Structural and Investment Funds intended to complement each other in order to deliver growth and jobs based recovery in the EU.
The scheme is intended to help fishermen in the transition to sustainable fishing, support coastal communities in diversifying their economies, finance projects that create new jobs and improve quality of life along European coasts and make it easier for applicants to access financing.
The EMFF replaces the former European Fisheries Fund (EFF) and has a €6.4bn budget, with additional co-funding provided by Member States who administer the fund locally. It is administered in England by the Marine Management Organisation on behalf of Defra and was opened for applications in January 2016 on a phased basis.
The UK’s Operational Programme incorporates the ‘Union Priorities’ as defined in the EMFF Regulation, aiming to:
The budget itself has been proportionately allocated based on country size. The UK has been awarded €243 million (increasing to a total budget for the UK of almost €310 million following the national co-funding contribution). The UK’s allocation is then further subdivided between England (€92.1 million), Scotland (€107.7 million), Northern Ireland (€23.5 million) and Wales (€19.7 million).
In the UK, funding will be provided on a phased basis with all of the remaining parts of the scheme opened by the end of 2016. At present there is currently €33 million available in Phase 1. However, the full scheme guidance is already available so that applicants may consider how to apply for funding that is opened later in the scheme.
Phase 1 provides for 6 different grant areas including projects for fishing vessel energy improvements, investment on board fishing vessels, improvements to shore-based facilities, partnerships and information sharing support, projects relating to the marine environment and inland fishing and, finally, support for aquaculture, processing and marketing.
The application process will vary dependent on the amount of funding requested, with applications over £100,000 requiring a panel review involving submission deadlines. However, for projects requesting funding under this limit, applications can be made any time and are assessed on a regular basis.
Ultimately a project must be in line with the overall aims of the EMFF to be considered for funding and each activity should be reviewed against the lists published on the MMO website (for the selection criteria click here).
Those operating within the fisheries, inland waters, aquaculture and maritime sectors are encouraged to take full advantage of the available funding to support growth in the industry and ensure continued, sustainable development.
