Key contact:
Smita Jamdar
Partner and Head of Education
T: 0800 763 1332
E: smita.jamdar@sghmartineau.com
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Contents
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Strategy, Students and Governance
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When do examinations become competence standards? | read
We report on a recent case which considered the vexed issue of reasonable adjustments in the context of examinations.
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Bribery & civil recovery orders | read
A salutary warning to institutions about the potential consequences of bribery and corrupt practices overseas.
Commercial
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Best endeavours or bust! | read
We report on a case looking at what the contract term ‘best endeavours’ actually means.
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Defamation Bill: A red herring or a white knight for free academic press? | read
An update on the long-awaited Defamation Bill.
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Estates
Human Resources
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Full article details
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| • Strategy, Students and Governance |
When do examinations become competence standards? | back to top |
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The question of where to draw the limit to the additional time afforded to disabled students in examinations is often a fraught one. Some institutions are opposed to the adjustment in principle, insisting that the traditional three-hour examination is indispensible and intimately linked to the very skills that the institution is seeking to test. The implication of that view is that the examination is itself a competence standard, defined by the Equality Act 2010 as an “academic, medical or other standard applied for the purpose of determining whether or not a person has a particular level of competence or ability”.
If the examination is a competence standard, then there is no duty under the Equality Act to make an adjustment to it. If, on the other hand, sitting an examination under time constraints is merely a method of assessing whether a student has acquired the requisite level of competence or ability, it is not a competence standard and the duty to make reasonable adjustments will be engaged in circumstances where the requirement to sit the examination in the prescribed time puts a disabled student at a substantial disadvantage, when compared with students who are not disabled. Hence, a reasonable alternative method of assessment should be provided or the existing one should be modified, depending on the student’s particular disability, the related substantial disadvantage and the limits of reasonableness.
The Court of Appeal (CA) recently considered a case referred to it from the Employment Appeal Tribunal (EAT) by a student with multiple sclerosis (Justin Burke v The College of Law, the Solicitors Regulation Authority [2012] EWCA Civ 37). The issue was whether the College of Law’s package of adjustments, which included 60% additional time to complete the written examination, together with additional breaks by stopping the clock for 15 minutes per hour or pro rata, were reasonable in the circumstances of the Legal Practice Course (LPC). The CA concluded that the time allowance was reasonable, but unfortunately did not address the specific issue of whether the LPC examination could itself be construed as a competence standard.
The EAT (and the Employment Tribunal previously) did, however, consider that question and concluded that the time element of the LPC examination amounted to a competence standard. That conclusion was based on an analysis of the specific nature of the LPC, whose purpose is vocational and is designed to prepare students for practice as trainee solicitors. The College of Law’s guidance emphasised the distinction of the LPC’s teaching methods and assessments from the approach adopted in the academic study of law. The LPC examination was specifically designed “to replicate transactional aspects of practice in acknowledgement of the fact that solicitors and their trainees often work under pressure and extreme time constraints and need to react quickly to the needs of a client, or other deadlines and the day-to-day working life of a solicitor”.
The EAT also considered guidance on competence standards which was issued to qualifications bodies by the Equality and Human Rights Commission under the previous legislation (the Disability Discrimination Act). That guidance stated that “having the requisite level of knowledge to pass the examination is a competence standard. However, the examination (as opposed to performance) in itself may not involve a competence standard – because the mechanical process of sitting the examination is unlikely to be relevant to the determination of a relevant competence or ability. Sometimes, of course, the process of assessing whether a competence standard has been achieved is inextricably linked to the standard itself.”
Clearly the EAT (and the Employment Tribunal) viewed the LPC examination as an example of the coincidence of competence standard and method of assessment. The LPC examination was a competence standard precisely because it tested students’ ability to work at speed under pressure, a skill required of practising lawyers. The timing requirement was therefore the "other standard” in the definition of “competence standard”.
The CA also accepted the EAT’s view that the fact of allowing additional time within which to carry out an examination does not automatically mean that time was not a competence standard. Giving a student some extra time, such that the nature of the examination (and competency standard) is maintained is different from giving such an amount of extra time that the examination is no longer testing what it intended to test, which in the case of the LPC was the ability to work under time pressure.
This case reinforces what we have advised institutions in the past viz. that if the examination itself replicates the very skills that are the subject of the assessment process and is not merely a method by which those skills are tested, then it is likely to be a competence standard and no duty to make adjustments is engaged. This is likely to apply to practical, vocational assessments such as the LPC examination, and practical examinations in medical or allied medical courses e.g. a practical assessment testing an osteopath’s ability to palpate a patient’s back – the assessment and the skill assessed are one and the same process. The traditional three-hour academic examination is however unlikely to be construed as a competence standard; rather it is the method by which a student’s state of knowledge (or the ability to assimilate it) is assessed and the required coincidence of the skill assessed and mechanics of testing it is not achieved.
It should be noted that claims for indirect discrimination can be commenced in relation to disability under the Equality Act. Consequently, even if an examination replicates the skills that are demonstrated in practice in the particular profession and is therefore a competence standard, a student could bring a claim if he/she can show that the examination:
- puts persons with his/her disability generally at a particular disadvantage;
- puts the individual student at that particular disadvantage; and
- is not a proportionate means of achieving a legitimate aim i.e. the examination cannot be objectively justified by reference to the particular profession. In other words, the question to ask is whether there is a less discriminatory, but equally effective, alternative means of replicating and assessing the relevant skills.
Notwithstanding that there is no duty to make reasonable adjustments to competence standards, it would be prudent for institutions to review them generally to minimise challenges on grounds of indirect discrimination.
Geraldine Swanton
Senior Associate Solicitor, Education Team
T: 0800 763 1455
E: geraldine.swanton@sghmartineau.com
© SGH Martineau 2012
A wholly-owned subsidiary of the Oxford University Press has agreed to pay nearly £1.9 million in recognition of sums it received which were generated through contracts won by its education business in East Africa. This follows a self-referral to the Serious Fraud Office by the OUP of concerns about irregular tendering practices, including in connection with two tenders funded by the World Bank. The SFO commenced proceedings for a Civil Recovery Order to which the OUP agreed. As well as the financial settlement, the OUP has revised its anti-corruption procedures, and has agreed to have these reviewed by an independent monitor who will report his findings to the SFO.
The self-referral was persuasive in the SFO taking the civil recovery route, rather than bringing a criminal prosecution. Any institution which uncovers evidence of overseas corruption should consider carefully with its professional advisors whether to self report to the SFO. In deciding what action to take, the SFO will consider the factors listed in its Guidance on the approach it will take to deal with overseas corruption. In particular the SFO will seek to establish:
- whether the institution’s board is genuinely committed to resolving the issue and improving the corporate culture;
- how co-operative the institution is in the SFO’s own investigation;
- what financial recompense and remedial action the institution is prepared to consider making;
- whether the institution recognises that any resolution will need to be public & transparent; and
- whether the institution is willing to work with the SFO and regulators abroad to reach a global settlement.
Assuming that these factors are present, the SFO guidance indicates that they would look for a civil rather than a criminal remedy. However, they do not rule out criminal prosecutions, especially if there is evidence that members of the board engaged personally in corrupt activities. Action might also be taken against individuals if, for example, they have personally benefited from the activity.
In terms of the offence of failing to prevent bribery, the SFO will be looking for evidence of adequate procedures to mitigate risk. These include:
- a clear statement of an anti-corruption culture visibly supported at the highest level within the institution;
- a code of ethics;
- principles that apply across the board, irrespective of local culture;
- policies and procedures on key risk areas such as gifts, hospitality and the vetting of third party agents;
- a helpline to enable employees to report concerns; and
- training & monitoring of effectiveness of measures.
If there is no self-referral of concerns, then the SFO is much more likely to pursue the criminal prosecution route. Therefore, any institution that uncovers concerns about overseas corruption would be well advised to investigate the option of self-referral with its professional advisors.
Smita Jamdar
Partner and Head of Education
T: 0800 763 1332
E: smita.jamdar@sghmartineau.com
© SGH Martineau 2012 |
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The phrases “best endeavours”, “all reasonable endeavours” and “reasonable endeavours” will be found in many of your contracts and are often bandied about, but what do they actually require you to do? Could complying with them or failing to comply with them be costly for your college?
Usually when contracts are being entered into and these obligations accepted the parties are full of goodwill and keen to get the new service and business relationship up and running. What happens when that goodwill comes to an end and a dispute emerges because it transpires that using best endeavours is in fact contrary to your commercial interests, is costing too much, no longer in the budget or you feel can no longer be justified?
This is what happened in a recent Court of Appeal case, Jet2.com Ltd v. Blackpool Airport Ltd ([2012] EWCA Civ 417), which served to bring these phrases back into the spotlight and illustrates why care needs to be taken before agreeing to these clauses. The case involved a 15 year contract between Jet2.com and Blackpool Airport which contained the following clause:
“Jet2.com and Blackpool Airport will co-operate together and use their best endeavours to promote Jet2.com's low cost services from Blackpool Airport and Blackpool Airport will use all reasonable endeavours to provide a cost base that will facilitate Jet2.com's low cost pricing”.
For the first four years of the contract Blackpool Airport allowed Jet2 to regularly operate flights outside the airport’s normal operating hours of 7:00 am to 9:00 pm. However, in order to reduce its costs Blackpool Airport gave Jet2 one week’s notice that it would no longer accept departures or arrivals scheduled outside normal operating hours. As a result Jet2 brought proceedings against Blackpool Airport for failing to use its best endeavours, claiming that the above clause obliged Blackpool Airport to accept aircraft movements outside of normal hours even though to do so meant that the airport had to incur large costs and expenses.
Blackpool Airport argued that the clause was too uncertain to be enforceable and, even if the clause was enforceable, did not oblige it to act in a way that was contrary to its commercial interests.
The court said that a best endeavours clause would be enforceable where the clause is sufficiently certain and there is an objective criterion by which it is to be judged. It ruled that in these circumstances Blackpool Airport’s actions amounted to a breach of contract because the wording “best endeavours to promote Jet2’s low-cost services” was sufficiently certain so as to include keeping the airport open to accommodate flights outside normal hours.
From this it is clear that if a college promises to exercise its best endeavours it could find that it has to act to its detriment and spend precious resources in order to fulfil a contractual obligation which, at the time the contract was entered into, seemed relatively benign.
So what can be done?
1) If you negotiate or deal with contracts for the college you should back up “the best endeavours” or “all reasonable endeavours” statement in the contract with a clear list of things which will be done, so that both parties know at the outset what is involved and can budget accordingly.
2) If you are responsible for operating or managing a contract on behalf of the college which contains such an obligation, or the college “inherits” such a contract and you need to reduce costs, don’t suddenly stop performing what could be a key obligation or perform the obligation in a different way. Instead, see if you can find evidence of why the obligation is being performed in that way or why it needs to be done at all. Then talk to the contractor to see if a change can be agreed going forward.
These clauses really are a case of “look before you leap”. A little bit of time spent at the outset could save time and money in the long term.
Carol Gunning
Senior Associate Solicitor, Commerce Team
T: 0800 763 1533
E: carol.gunning@sghmartineau.com
Sheiba Brannan
Trainee Solicitor, Commerce Team
T: 0800 763 1657
E: sheiba.brannan@sghmartineau.com
© SGH Martineau 2012
Defamation Bill: A red herring or a white knight for free academic press? | back to top |
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The Defamation Bill was finally placed before Parliament on 10 May 2012, and is currently going through the House of Commons and the House of Lords (and subject to amendments during this process) before it is brought into force in England and Wales. Despite its infancy journalists, academics, activists and members of the legal profession are already heralding it as everything from a breakthrough for freedom of speech to being grossly offensive to the principals of natural justice.
The Bill seeks to introduce a number of provisions that aim to limit the number of defamation claims that are brought and the associated costs. These include a test whereby claimants will have to show that the publication has caused them substantial harm, and a new single publication rule which should provide certainty in relation to the length of time claimants have to bring claims.
Amongst the most important reforms, given the practical implications, will be the effect on those engaged in scientific/academic debate. The freedom from the threat of legal action for defamation is thought by many to be essential to both permit and promote the advancement of science and society by way of free and open debate. The Defamation Bill may be a step towards that ideal, but it may not be a step far enough.
The Bill in its current form provides that the publication of a statement in a scientific or academic journal is privileged if certain conditions are met. These conditions include that before the statement was published in the journal an independent review of the statement’s scientific or academic merit was carried out by either the editor of the journal or one or more persons with expertise in the scientific or academic matter concerned. The overriding protection in the Bill is that a publication is not privileged if it is shown to be made with malice.
Whilst this appears to be useful, many campaigners argue that it does not go far enough and will not prevent defamation laws being used to suppress scientific and academic journalism. The threat was clearly demonstrated in a widely reported recent case involving the scientific journal Nature. It successfully defended a libel claim brought by an offended physicist who claimed that an article damaged his reputation. Whilst the journal was successful, the costs involved in fighting the case will have run into hundreds of thousands of pounds. Nature could have also have faced the risk of paying the other side’s costs, which would have been of a similar size, if the case had been lost. Few have the means or would be willing to take on the risk of defending such a claim.
The Defamation Bill is still subject to campaigning to increase its scope in the hope that it will prevent such suppression. The Legal Reform Campaign group reported that, on 27 June, Parliament and in particular Justice Minister Lord McNally heard stories of suppressed debate in science, medicine, literature, consumer affairs and community forums. After the meeting Professor Brian Cox, Dara Ó Briain and Dave Gorman presented a petition with over 60,000 signatures to Downing Street alongside representatives from Index on Censorship, Sense About Science and English PEN. These were all calling for changes to the Bill to provide greater freedom.
It is to be hoped that the legislation when it comes into force will provide a clear set of rules that will balance freedom of speech and protection, whilst offering the legal certainty that will reduce litigation. In the meantime the doomsayers and the optimists will have to wait to see whether or not the reforms bring forth a radical reform of the defamation laws that are fit for modern society.
Paul Currie
Associate Solicitor, Commercial Disputes Team
T: 0800 763 1473
E: paul.currie@sghmartineau.com
© SGH Martineau 2012
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National Planning Policy Framework – how does it affect energy projects? | back to top |
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The Localism Act 2011 was regarded by many as a nimbys’ charter with emphasis being placed on an increase in local participation, consultation and the creation of “neighbourhood plans” and “forums”. Many in the energy sector have feared that this legislation and the “localism” concept will inevitably impact on getting planning permission for energy developments through the system.
The much awaited and debated National Planning Policy Framework has now been published. This scraps over 1,000 pages of government planning policy guidance on a range of topics, including energy and renewables, replacing it with a 50+ page document.
How is this going to affect energy development projects? During the consultation period for the Framework and the various drafts, many commentators claimed that the Framework would be a developer’s charter. What will be the reality?
Over the preceding months there were many parties set on retaining the status quo in terms of preserving and promoting the countryside, heritage and Green Belt, who fought to have amendments made to the Framework. Some of those have been introduced in the final document.
Many pressure groups focused on the presumption in favour of sustainable development. All the excitement about the presumption is rather puzzling since in reality, in many respects, the presumption has been in planning policy for many years. The publication by the government of the Framework has identified the clear objective of assisting in kick-starting development in the UK by placing the presumption at the heart of the planning process.
In terms of specific reference and guidance on energy in the Framework these are found in section 10 headed “Meeting the Challenge of Climate Change, Flooding and Coastal Change”. More specifically, paragraphs 93-98 encourage local planning authorities to support the move to low carbon energy and to encourage an increase in the use and supply of renewable and low carbon energy.
Local planning authorities are encouraged to provide positive strategies to promote such schemes. They are advised to design policies to maximise such developments and also to identify suitable areas for their location. Local planning authorities are to encourage and support community-based energy initiatives.
The Framework stresses that local planning authorities should not require an energy developer to demonstrate an overall need for renewable energy and low carbon energy. Applications for such developments should be approved if the “impacts (of the development) are acceptable”.
Note should also be taken of paragraph 113 of the Framework under the section headed “Conserving and enhancing the natural environment”. Under this paragraph local planning authorities are encouraged to set criteria-based policies against which proposals for any developments on or affecting protected wildlife, geodiversity sites or landscape areas will be judged. Therefore any energy development of, e.g. a windfarm, should consider this national policy and design a scheme to accommodate local planning criteria.
The Framework has a number of headline issues. Possibly the most important headlines for energy-related development is the presumption in favour of sustainable development and the reemphasis on the importance of Local Plans.
The presumption in favour of sustainable development is the issue that prompted the most argument on the run up to the Framework’s publication. The Minister indicated that this principle “should be seen as a golden thread running through both plan making and decision making”. The Framework sets out broadly that this principle should apply to plan making and decision-taking, and identifies a number of guiding principles on sustainable development. No doubt there will be varying arguments on specific development projects by protagonists on different sides as to whether a development is sustainable or not. This will no doubt feature in many energy projects.
Greater emphasis is now placed on the Local Plan. There is now pressure on local planning authorities to ensure that they have up to date Local Plans. The Framework indicates that local planning authorities have 12 months from the date of publication of the Framework in which to bring adopted Local Plans into full alignment with the Framework. There are transitional arrangements and those Local Plans adopted since 2004 will have greater weight than others in the decision-making process. Therein lies a current serious problem – many Local Plans are not up to date. Recent statistics have indicated that only 42% of local planning authorities around the UK have a Local Plan which is adopted and up to date. Some areas such as Cornwall, East Sussex and Hertfordshire have little in the way of adopted plan coverage. The drafting and adoption of Core Strategies is way behind schedule in many areas. The Framework emphasises that a development that is sustainable and accords with an up to date Local Plan should be approved without delay. Many local planning authorities will have Local Plans which are deficient in relation to energy related policies. Therefore it will be necessary for energy developers to lobby and consult with local planning authorities on specific policies that encourage such development. In the next 12 months it will be important to ensure that they make a positive contribution to those policies. This will be especially evident for onshore windfarm schemes, considering adverse press comments focusing on hostility in local communities towards onshore wind developments in the future.
Many campaigners feared that protection of the Green Belt would be relaxed. However, it is clear from the terms of the Framework that Green Belt policy will not be overridden by a presumption in favour of sustainable development. In a lot of respects the Framework, contrary to what many feared, has sought to emphasise protection of the Green Belt and open countryside. The Framework has its own section on Green Belt and, as well as re-emphasising the protection of Green Belts, indicates that decision-makers should recognise “the intrinsic character and beauty of the countryside”. It should be noted that this had been removed from earlier drafts of the Framework so the lobbyists may feel that they have achieved some recognition for their efforts on this point.
In terms of the countryside and the natural environment generally the Framework actually strengthens the old policies, reflecting the government’s commitment to the environmental aspect of sustainable development. Unfortunately for renewable energy developers the Framework makes the comment that “elements of many renewable energy projects will be considered as inappropriate development in Green Belt”.
Going back to the Localism Act 2011 and its emphasis on “localism” and “neighbourhood plans”, the Framework states that local authorities should consider suitable areas for renewable energy and low carbon energy sources etc. However, the increased focus on local consultation, it is feared by the energy industry, will only lead to more problems and delays in the system. Studies suggest that the localism agenda will simply give greater opportunity for local people to actually oppose renewable energy schemes. As many influential commentators predict, many applications will be refused due to local political pressure, despite an objective assessment indicating that a renewable energy scheme is sustainable and in accordance with local planning policy. An increase in planning appeals and high court challenges is inevitable.
Iain Johnston
Partner, Head of Planning & Environment
T: 0800 763 1231
E: iain.johnston@sghmartineau.com
© SGH Martineau 2012 |
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Sickness during annual leave – a further blow for employers | back to top |
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In the case of Pereda v Madrid Movilidad SA ( C-277/08 ECJ) the Court of Justice of the European Union held that an employee who is on sick leave during what would otherwise have been annual leave has the right to reschedule the leave when he/she recovers. The new period of annual leave, equal to the overlap between the planned annual leave and the sick leave, can be carried over to the next leave year if necessary.
The CJEU’s reasoning for its decision was that an employee’s entitlement to a minimum of four weeks’ paid annual leave under Article 7(1) of the EU Working Time Directive is a particularly important aspect of European Union social law, from which there can be no derogation. Furthermore, it highlighted that the purpose of paid annual leave is to enable an employee to rest and enjoy a period of relaxation and leisure. In contrast, sick leave serves an entirely distinct purpose i.e. a period of recovery.
The CJEU has now built upon the principle established in Pereda in the case of Asociación Nacional de Grandes Empresas de Distribución (ANGED) v Federación de Asociaciones Sindicales and ors (C–78/11 (2012)). The court reiterated the principle that an employee who is on sick leave during a period of previously planned annual leave is able to reschedule the leave, but it also stated that the point at which the employee becomes sick is irrelevant.
Therefore, the principle established in the Pereda case applies not only to employees who fall sick before their annual leave starts but also to employees who become ill whilst on their annual leave. The court stated that it would be arbitrary and contrary to the purpose of annual leave if an employee could only reschedule his leave if he was already sick before the period of annual leave commenced.
This decision marks a further blow for employers who will have to meet requests for extra time off work when employees claim that they are too sick to enjoy their annual leave. The decision raises uncertainty as to how sick an employee has to be before they can claim that they are unable to do so.
It is easy to see how the principle could be abused in practice. Employers can combat this risk by requiring medical evidence should the need arise.
Jane Byford
Partner & Head of Employment Team
T: 0800 763 1378
E: jane.byford@sghmartineau.com
© SGH Martineau 2012
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© SGH Martineau 2012
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