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Court: Supreme Court

Judges do qualify as ‘workers’ for the purposes of whistleblowing

Gilham v Ministry of Justice [2019] UKSC 44

On appeal from: [2017] EWCA Civ 2220

The issue in the appeal is whether a District Judge qualifies as a ‘worker’ or a ‘person in Crown employment’ for the purpose of the protection given to whistle-blowers of the Employment Rights Act 1996, Part IVA. If not, is this discrimination against her in the enjoyment of her right to freedom of expression, protected by the ECHR, art 10 and art 14?

Held: The Supreme Court unanimously allows the appeal and remits the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of  of the 1996 Act, Part IVA. The issue is whether the appellant’s work is performed pursuant to a contract with the recipient of that work or services, or pursuant to some different legal arrangement. Judges hold a statutory office, and office-holders do not necessarily hold office pursuant to a contract. It depends on the intention of the parties, which is reflected in the manner of engagement, the source and character of the rules governing service and the overall context. The failure to extend the Part IVA protections to judicial office-holders is a violation of the appellant’s right under article 14 not to be discriminated against in her enjoyment of the rights under the ECHR.

Parent’s consent to confine son to residential care, a breach of his human rights

In the matter of D (A Child) [2019] UKSC 42 

This appeal considers whether the confinement of D, a young person aged 16, who lacked capacity or competence to make decisions about his residence and care, amounted to a deprivation of his liberty for the purposes of art.5 ECHR, in circumstances where his parents were consenting to the confinement.

Held: The Supreme Court by a majority of 3 to 2 allows the appeal. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation. The procedural requirements of article 5 applied (and had in fact been complied with by the court authorisations.

The MCA does not override other common law and statutory provisions relating to 16 and 17-year-old children, but it does indicate an appreciation of the different needs of this age group. Article 5 ECHR protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17. D’s living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty.

Supreme Court rules prorogation as unlawful

R (Miller) v Prime Minister, Cherry & Ors v Advocate General for Scotland [2019] UKSC 41

On appeal from: [2019] EWHC 2381 (QB) and [2019] CSIH 49.

Held: giving a unanimous judgment, the Court concluded that the case was about the limits of the prerogative power to advise Her Majesty to prorogue Parliament. The power to prorogue is limited by the constitutional principles – of Parliamentary Sovereignty and Parliamentary accountability – with which it would otherwise conflict. As such the decision was justiciable.

Supreme Court refuses to allow argument that respondent had acquired a right of permanent residence at the time of deportation decision

Secretary of State for the Home Department v Franco Vomero (Italy) [2019] UKSC 35

This appeal considered whether, on remittal to the Upper Tribunal, the respondent should be permitted to argue that he had acquired a right of permanent residence by the time of the decision to deport him was made.

The Supreme Court allowed the appeal of the Secretary of State. The Court granted a declaration that neither Directive 2004/38/EC, arts 28(2) nor 28(3) applied to the respondent at the date the appellant decided to deport him.
Considering the previous case law of the CJEU, and its judgment in this case, the Supreme Court considered it necessary to determine whether the respondent acquired a right of permanent residence by the time of the decision to deport him in reality, rather than just notionally. Only having determined this could the Court consider whether he had retained this right. Discussing the Opinion of the Advocate General, and the line of CJEU case law, the Supreme Court held that Lord Mance’s conclusion that the respondent had not acquired a right of permanent residence by the date of the decision to deport him was correct. This was because the period of imprisonment for more than two years which the respondent had undergone by 30 Apr 2006 prevented him from acquiring a right of permanent residence on that date, or at any subsequent time prior to 23 Mar 2007, when the decision to deport him was taken. The Court concluded, therefore, that the necessary period of five years’ continuous legal residence could not begin any earlier than 3 Jul 2006, when he completed the custodial part of his sentence, and would depend on his fulfilling the conditions for legal residence laid down in the Directive.
As such, the Court has remitted the respondent’s appeal to the Upper Tribunal to be reconsidered in accordance with this judgment.

Supreme Court holds the non-competition clause enforceable in its first domestic employment restraint of trade case in a century

Tillman v Egon Zehnder Ltd [2019] UKSC 32

This appeal considered whether the doctrine of restraint of trade is engaged by a restriction on post-employment shareholding, the proper construction of the phrase ‘interested in’ in a non-competition covenant, and the correct approach to severance of a non-competition covenant.
The Supreme Court allowed the appeal, rendering the non-competition covenant enforceable. The Court held that the restraint of trade doctrine is engaged by a prohibition on holding shares. It considered that, in restrictive covenants, the phrase ‘interested in’ generally refers to or includes holding shares.
The Court determined that the appropriate test for severance was not that developed in Attwood v Lamont, which has been overruled. Rather, the new test for severance is whether the objectionable words can be deleted without generating any major change in the overall effect of all the post-employment restraints in the contract.
The Court concluded that the words ‘or interested’ were capable of severance and so the non-competition clause was enforceable.