Undignified exit

Photo by Nick Kane on Unsplash

The dismissal of Sonia Khan

In August 2019, a story which was widely reported in the British media, caught my attention: the abrupt dismissal of Sonia Khan as a special adviser (or ‘Spad’) with the UK Government. Ms Khan had worked for two previous Chancellors of the Exchequer (the UK Finance Minister). She was summoned to a meeting with Dominic Cummings, the UK Prime Minister’s top political adviser and sacked. Ms Khan was ordered to surrender her security passes and escorted from Downing Street by an armed Police Officer. All in all, it was a very undignified and humiliating exit for Ms Khan. Needless to say, Mr Cummings did not follow any disciplinary procedure when he made the decision to give Ms Khan her marching orders.

This decision was far from wise and Ms Khan has an extremely strong case for unfair dismissal in terms of the Employment Rights Act 1996 (she has the necessary continuous service of more than 2 years required to bring such a claim and no warnings were issued to her).

This affair led to me think about humiliating dismissals by employers and whether the affected employee could claim damages for the manner of their sacking? In other words, can the sacked employee claim that their feelings were injured as a result of the way in which they s/he was dismissed?

Links to articles about Sonia Khan’s dismissal can be found below:

https://www.independent.co.uk/news/uk/politics/sajid-javid-dominic-cummings-fires-special-adviser-johnson-brexit-sonia-khan-a9085056.html

https://www.standard.co.uk/news/politics/no-10-must-pay-sajid-javids-fired-aide-tens-of-thousands-in-compensation-a4232216.html

Injury to feelings in discrimination claims

When discussing discrimination claims in terms of the Equality Act 2010 (primarily), I often stress the issue of injury to feelings as an element that will be included in the calculation of a final award by an Employment Tribunal.

In several Blogs (please see the end of this article for the relevant links), I have discussed the importance of the Vento Guidelines or Scale.

In Vento v Chief Constable of West Yorkshire Police (No 2) [2003] EWCA Civ 1871 compensation limits of £15–25,000 were laid down in situations where injury to feelings was involved in cases involving sex and race discrimination. In Sturdy v Leeds Teaching Hospitals NHS Trust ET Case 1803960/2007 14th and 15th April 2009 the Employment Tribunal decided that, since Vento had been decided in 2003, a higher rate of inflation had to be considered hence the increased award made to a victim of age discrimination.

These awards for injury or hurt feelings have now become known as the Vento Guidelines and in Da’Bell v National Society for the Prevention of Cruelty to Children (2009) EAT/0227/09, the Employment Appeal Tribunal (sitting for England and Wales) brought them into line with inflation.

Since Da’Bell, the Vento guidelines are usually updated annually in line with inflation.

The current bands or scales (from 6 April 2020) are:

♦ £900 to £9,000 for the lower band

♦ £9,000 to £27,000 for the middle band

♦ £27,000 to £45,000 for the top band

What’s the situation with unfair dismissal claims?

In Dunnachie v Kingston upon Hull City Council [2004] EWCA Civ 84, the English Court of Appeal set the cat amongst the pigeons when it stated that a compensatory award for unfair dismissal could also include injury to an employee’s feelings. The Court of Appeal was clearly relying upon an obiter remark made by Lord Hoffman during the decision of the House of Lords in Johnson v Unisys [2001] UKHL 13.

As far back as the decision by the short lived National Industrial Relations Court (1971-1974) in Norton Tool Co Ltd v Tewson [1972] EW Misc 1, the position was quite clear: the compensatory award in unfair dismissal claims did not include injury to an employee’s feelings in connection with the manner of the dismissal suffered by him or her.

Lord Hoffman’s obiter statement and the decision by the Court of Appeal in Dunnachie appeared to place this principle in considerable jeopardy and opened the door to what could have been a potentially significant, new development in unfair dismissal case law. Clearly, it would be advantageous for the House of Lords to provide a definitive ruling on this matter.

Subsequently, Kingston upon Hull City Council appealed against the judgement of the Court of Appeal to the House of Lords. 

On Thursday 15th July 2004, the House of Lords delivered its judgement in this case ([2004] UKHL 36). Their Lordships (Lord Hoffman amongst them – ironically) killed off any idea that an award for unfair dismissal could include injury to an employee’s feelings for the manner of the dismissal.

Compensation, therefore, in unfair dismissal claims will be concerned with the employee’s economic losses only.

Conclusion

The decision of the House of Lords in Dunnachie v Kingston upon Hull City Council [2004] UKHL 36 was and remains a clear restatement of the orthodox position as set down by Sir John Donaldson all those years ago in Norton Tool Co Ltd.

As Lord Steyn, one of the Law Lords, remarked in Dunnachie:

“On the other hand, the correctness of the Norton Tool decision was not an issue in Johnson v Unisys. It is true that there were references by both sides in the oral argument to Norton Tool. But the House heard no adversarial argument exploring the correctness or otherwise of that decision. In these circumstances a definitive overruling of a decision which had stood for nearly 30 years would have been a little surprising.”

In fact, Lord Hoffman’s observation (and it was nothing more than observation we are now assured) could in no way be interpreted as an attempt to overturn a long-standing and well-established legal principle. Lord Hoffman, in Johnson v Unisys [2001], was not “inviting the House to overrule a longstanding decision on a point of statutory construction that was not in issue and not explored in opposing arguments.” The statement by Lord Hoffman was clearly obiter dictum i.e. things said by the way which do not form part of the actual court’s judgement and that was the end of the matter.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

https://seancrossansscotslaw.com/2020/02/09/bad-hair-day/

https://seancrossansscotslaw.com/2019/04/23/exclusion/

https://seancrossansscotslaw.com/2019/04/10/everyday-experiences-of-racism/

https://seancrossansscotslaw.com/2019/02/22/sticks-and-stones-may-break-my-bones-but-names-will-never-hurt-me/

Copyright Seán J Crossan, 8 April 2020

Banning smoking in the streets of Paris …

Photo by Paul Gaudriault on Unsplash

If anyone or anything wanted to ban smoking in the streets of Paris, you would think that (logically), this would be a matter for the French National Assembly or even Paris City Council (Conseil de Paris).

… And you would be quite correct.

You might be thinking what relevance does this have to Scots or indeed English law?

The supremacy of Parliament (or its limits)

The constitutional lawyers amongst the Blog readership, however, might guess where I’m going with the title. When studying the area of Westminster parliamentary sovereignty many, many years ago, I was struck by the words of Sir Ivor Jennings QC, a very famous British constitutional lawyer.

Jennings was explaining that the Westminster Parliament, as the supreme law making body in the UK, had the power to pass any law – even making it unlawful to smoke cigarettes or cigars in the streets of Paris. Now Jennings fully appreciated that this was a slightly absurdist statement; that wasn’t his point (to which I shall return shortly).

Would our French neighbours obey such an Act of the Westminster Parliament? They would not; quite rightly recognising that such a law lacked any legitimacy in their eyes.

So, what was Jennings driving at when he uttered his remark about the scope of the law making powers of the Westminster Parliament? He was recognising that Parliament could pass any law that it wished irrespective of how absurd it was or how unlikely it was to be obeyed in practice.

The English have placed great emphasis on the notion of parliamentary sovereignty. This principle, of course, can be challenged. The American colonists who participated in the protest popularly known as the Boston Tea Party in 1773 were directly challenging Westminster parliamentary supremacy. Several years later, with the successful conclusion of the American Revolution, it would be the new legal order of the United States of America that would supplant the British parliamentary tradition and thus make it a matter of history.

In 1919, Irish Republicans refused to send Members of Parliament to take their seats at Westminster following the UK General Election of 14 December 1918. Instead 27 Sinn Fein MPs chose to sit in Dáil Éireann (effectively an embryonic Irish National Assembly) in Dublin. Highly unconstitutional in British eyes; yes but it spelled the beginning of the end for Westminster parliamentary sovereignty in 26 of the 32 counties comprising the Island of Ireland.

More recently, in 1965, the White minority Government of the former British colony of Southern Rhodesia (under the leadership of Premier Ian Smith) declared independence unilaterally from the mother country. There was very little that the Westminster Parliament and British Government could do to prevent this situation. The Rhodesian Government would ultimately be brought crashing down to earth because of the armed struggle of the Black majority liberation movement. This would eventually lead to independence and majority rule for the territory (to be known as Zimbabwe).

Brexit

To return to Sir Ivor Jennings, his remarks about smoking in the streets of Paris were brought home to me today when reading about the remarks made by Simon Coveney, the Irish Deputy Prime Minister and Foreign Minister about Brexit.

Mr Coveney was being asked about the implications of the European Union (Withdrawal Agreement) Bill – introduced in the House of Commons by UK Prime Minister Boris Johnson shortly after his Conservative Party won the General Election of 12 December 2019.

This Bill will has just passed through the Commons and will now go on to the House of Lords (where it will pass) and receive the Royal Assent in the next week or two. The exit of the UK will happen by 31 January 2020.

Mr Coveney was not taking exception to this development: in fact he was pointing out some hard realities for the British Prime Minister. The easy part of Brexit will have been completed, but the harder part remains: concluding a trade deal between the UK and the EU by the British Government’s self-imposed deadline of December 2020. Needless to say, but this has not been accepted by the remaining 27 EU member states.

Mr Coveney noted that a provision of the European Union (Withdrawal Agreement) Bill (currently Clause 33) prohibits the UK Government from extending negotiations with the EU 27 in order to obtain a trade agreement if one is not concluded before the end of 2020:

“I know that Prime Minister Johnson has set a very ambitious timetable to get this done. He has even put it into British law, but just because a British parliament decides that British laws say something doesn’t mean that that law applies to the other 27 countries of the European Union and so the European Union will approach this on the basis of getting the best deal possible – a fair and balanced deal to ensure the EU and the UK can interact as friends in the future. But the EU will not be rushed on this just because Britain passes law.”

Conclusion

When Sir Ivor Jennings made his oft quoted remark about parliamentary legislative powers, he was acknowledging the theoretical supremacy of Westminster. I also believe that he used the particular example of banning smoking in the streets of Paris to demonstrate the clear limits of Westminster supremacy: practical and political realities will often combine to frustrate the will of Parliament.

In speaking today in the terms that he did, the Irish Deputy Prime Minister clearly recognises this reality.

Does the UK Government?

A link to an article on the Sky News website about Simon Coveney’s remarks can be found below:

http://news.sky.com/story/eu-will-not-be-rushed-in-post-brexit-talks-irish-deputy-simon-coveney-warns-11907060

Copyright Seán J Crossan, 12 January 2020