Challenges facing green space: is statute the answer?

Against a backdrop of austerity, characterised by public-sector funding cuts and a devolutionary agenda, this paper explores how legislation might address two, inter-related challenges which face public urban green space ('greenspace') in England and Wales; namely, responsibility for provision, and identification of supporting funds. It focuses on two proposals; first, the introduction of legislative powers to enable local authorities to create user-charging schemes, and secondly, the imposition of a local authority statutory duty to provide greenspace

Resolving the Inconsistency between National and EU Motor Insurance Law. Was Factortame the Solution nobody Sought?

In this article we argue that the continued uncertainty of UK national motor vehicle insurance law when viewed in respect of its EU parent, the Motor Vehicle Insurance Directive (MVID), has not been satisfactorily addressed using the remedy available through the non-contractual liability of the State. The existing enforcement mechanisms have equally been haphazard in their effectiveness and success in affording rights to third-party victims. Given the link between the MVID and the free movement of persons and goods on which the harmonization of insurance protection was based, we present the first article establishing an argument for the offending aspects of UK national law to be disapplied. Whilst the UK has concluded its agreement to withdraw its membership from the EU and thus to be bound by EU law and the jurisprudence of the Court of Justice, until the transitional period is completed the UK remains aligned to EU law. It is committed to follow superior EU law and the judgments of the Court of Justice. Hence the remedy issued from the Factortame line of case authorities may prove to be the most effective way to grant access to rights which continue to be denied to victims in the UK

Social exclusion : pathways or roadblocks? An analysis of advisory agencies

This article investigates the work of advisory agencies in a region of the UK and how these agencies aid individuals in accessing their employment rights. Organisations, including the Department of Constitutional Affairs, have identified the intrinsic link between access to justice and the role of not-for-profit and trades unions advice agencies, and how workers in particular require assistance to enforce and secure their employment rights. An empirical study was undertaken to establish the roles performed by these agencies in the areas of employment and European Union rights, and the factors which may influence the agencies’ opportunities to advise in these dynamic areas. The article concludes that the advisers and the agencies provide a valuable service for workers in ensuring workers have access to their employment rights; they are however restricted due to lack of funding and opportunities for research. This ultimately results in many workers being excluded from important employment protections and therefore a mechanism to ensure access is required to facilitate inclusion in rights’ protection

Anatomy of an employee

Obfuscation, uncertainty and opacity. These are just a few of the words that may be used to describe the judiciary’s attempt at producing a consistent and accurate identification of employment status of individuals. Given its significance, one may have considered that definitive instruction and guidance would be present to navigate interested parties. However, where clarity is required, only confusion remains. This is not to lay the blame at the door of the judiciary entirely. The ‘mix of law and fact’ involved in the identification process incorporates facts in each case which will invariably lead to contradictory decisions, but the underlying principles established in law – created by the judiciary in the absence of any specific and meaningful guidance from the legislation, must offer key criteria on which impartial decisions as to the employment status of an individual can be made. This paper attempts to identify those key criteria present in the judgments indicative of employee status and thereby provide instruction for interested parties

Access to justice: a deconstructionist approach to horizontal direct effect

Access to justice of European Community (EC) law rights has been a concern of the Member States, the EC Commission, and individuals who have experienced the effect of denial of these rights due to inaction or misapplication by the particular State. This problem has been exacerbated with the continued abjuration of Horizontal Direct Effect of Directives (HDE), which has been exemplified in employment relations where the majority of EC laws are enacted in the form of Directives. This paper considers the issue of HDE and how it impacts on access to EC laws for workers. It investigates the practical problems experienced with the denial of this method of enforcing rights in conjunction with the dismantling of the previous arguments as to its denial. The paper concludes by establishing that HDE can be given effect if the European Court of Justice (ECJ) and the Member States have the desire, and how it would offer true access to justice for workers of their EC rights

The end of the opportunistic breach of contract! The elective theory of repudiatory breach prevails : Societe Generale, London Branch v Geys [2012] UKSC 63

On the 19th December 2012 the Supreme Court provided an answer to the longstanding question as to the consequences of a wrongfully repudiated contract of employment. Was it for the innocent party to elect to accept the repudiation to bring the contract to an end? Or, was the contract automatically ended upon the wrongful repudiation? Previous authorities had moved between these elective and automatic theories. The elective theory held that a wrongful repudiation only became effective where the innocent party elected to accept the repudiation. Conversely, the automatic theory considered that the contract ended automatically upon the repudiation. Whilst in traditional contract law, the elective theory had been established as effective, this was not decided with authority in contracts of employment. In Geys, the Supreme Court had the opportunity to consider which was the applicable theory in relation to an employer’s use of a payment-in-lieu of notice (PILON) clause. The Court resolved the conflict (4-1 with Lord Sumption dissenting) by holding that the elective theory was preferred in instances of wrongful repudiation of a contract of employment. This judgment has significant implications for employers, but also for employees who wrongfully terminate the contract

Holes in the safety net? State liability and the need for private law enforcement

Following Francovich and Bonifaci v Italy[1991] it was widely considered that State Liability would be an enforcement mechanism that would end the problems the European Court of Justice (ECJ) had contended with through its battle over the adoption or denial of Horizontal Direct Effect of Directives (HDE). In the subsequent years it has been demonstrated that the debate for and against HDE's adoption has continued. This has been due in part to the limitations of State Liability as an effective enforcement mechanism which provides individuals not with their rights, but rather a damages action against the State. This article critiques State Liability and demonstrates the severe limitations which this enforcement mechanism has for those who wish to avail themselves of EC rights denied to them. Such limitations include the piecemeal nature of this method of enforcement; whether cases, particularly from employment law issues, should be heard against the State or the employer causing the problem complained of; and the nature of an enforcement mechanism based on the award of damages. It concludes by analysing this evidence as to whether State Liability is an adequate alternative to HDE, and hence should the enforcement of EC law be brought back from a public law action to the private sphere.</p

The limitations to workers accessing EU rights: awareness, advice and enforcement.

This article investigates the United Kingdom’s membership of the European Union (EU). This examination considers how the EU has provided greater protective employment rights for workers, through provisions in the Treaty and various Directives, than had been achieved through the UK’s own legislative programme. However, these rights are often inaccessible due to governmental intransigence and a lack of awareness by workers of many employment rights. An empirical study was conducted from the perspective of workers and their not-for-profit advisers to consider the consequences of these barriers and to offer potential solutions to the problems

Hitting employers where it hurts : Gülay Bollacke v Kock

This case note relates to the recent decision of the Court of Justice of the European Union (Court of Justice) in Gülay Bollacke v K + K Klaas & Kock B.V. & Co. KG, [2] on the interpretation of the Working Time Directive (and national implementing measures and their interpretation) when the individual is unable to access the right to paid annual leave when ill, and who subsequently dies being owed this accrued leave. Ultimately, the individual (or perhaps more accurately his/her beneficiaries) [3] is entitled to receive payment for the leave untaken and national law, as exemplified in Germany in the case before the Court of Justice, must be interpreted accordingly. This case follows on from a series of judgments of the Court of Justice relating to the application of the Working Time Directive and demonstrates how the Court is steadily dismantling the barriers erected by Member States in preventing the complete and correct application of the law. Employers are also reminded of the requirement that they should follow the EU law where inconsistencies exist with national law or face the prospect of legal action, associated costs, and awards being issued against them.</p

Dismiss, upset and breach - just don’t suspend : the false dawn of damages for future losses. A case note on Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, [2012] 2 AC 22

On 14 December 2011 the Supreme Court handed down its judgment regarding the extent to which damages awards in instances of dismissal can take into account future losses, see Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2011] UKSC 58, [2012] 2 AC 22. The Court of Appeal ([2010] EWCA Civ 571) had held there was no principle of law why damages could not include future losses where an employer had breached the contract by not following contractual disciplinary and dismissal procedures. The question considered by the Court of Appeal was whether the status quo of restricting such awards to a statutory maximum (following the ACAS Code) and/or to the contractual notice period plus reasonable period of time for the procedures to be completed, was applicable. Alternatively, the Court of Appeal could move away from this traditional purely-contractual approach and enable damages to take into account those future losses associated with an unfair / wrongful dismissal. This was the approach taken. The Supreme Court, reversing the Court of Appeal, decided to follow the former, traditional approach. As such, its decision has broad implications for employers who flout contractual disciplinary and dismissal procedures, and it has further implications for employers who choose to suspend individuals rather than to dismiss them. Indeed, the case confirms that it may likely be more certain and financially beneficial for employers to choose to dismiss an individual rather than to potentially invoke greater costs and damages awards by choosing to suspend.</p