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Dijen Basu QC and Jonathan Davies represent Leicestershire Police in successful appeal against EAT decision that paying men statutory shared parental leave pay potentially constituted indirect sex discrimination

24th May 2019

Dijen Basu QC and Jonathan Davies represented the Chief Constable of Leicestershire Police in his successful appeal to the Court of Appeal against the decision of the EAT that only paying statutory shared parental leave pay to those taking this leave was capable of amounting to indirect sex discrimination against men, given that women have the more lucrative option of taking maternity leave with enhanced maternity pay.

They persuaded the Court of Appeal that the EAT and ET had been wrong to hold that male and female police officers’ terms and conditions of service were identical and that, in reality, Mr. Hextall’s claim amounted to a claim to be entitled to corresponding terms to those of a female officer in relation to maternity leave and pay. As such, it amounted to an equal terms (formerly equal pay) claim, so that any sex discrimination claim would be excluded. The equal terms claim was bound to fail because it related to terms of work affording special treatment to women in connection with pregnancy or childbirth.

To the extent that it could be brought as a direct sex discrimination claim, it would be doomed because of s.13(6)(b) (maternity leave and pay are special treatment afforded to women in connection with pregnancy or childbirth) and, in any event, because a woman taking maternity leave was not a proper comparator within s.23.

The EAT’s analysis of the indirect sex discrimination claim was flawed because the PCP relied on (only paying statutory shared parental leave pay to those taking shared parental leave) did not cause any disadvantage to women in comparison with men. In any case, birth mothers had to be excluded from the pool for comparison.

The Court of Appeal also accepted that, even if there was prima facie indirect discrimination against men taking shared parental leave, it would be justified by the aim of affording special treatment of mothers in connection with pregnancy or childbirth.

The Court held that “Mr Hextall’s complaint is in reality an attack on the whole statutory scheme, in turn derived from EU law, under which special treatment is given to birth mothers.” In rejecting it, they accepted Dijen’s and Jonathan’s formulation of the 6 different purposes of statutory maternity leave: (1) to prepare for and cope with the later stages of pregnancy, (2) to recuperate from the pregnancy, (3) to recuperate from the effects of childbirth, (4) to develop the special relationship between the mother and the newborn child, (5) to breastfeed the newborn child (recommended for a period of six months by the World Health Organisation), and (6) to care for the newborn child. (1) – (5) are unique to women.

PC Hextall is understood to be seeking permission to appeal to the Supreme Court.

The hearing was livestreamed: please click here to access the video. Please click here for a copy of the judgment.

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Independent Inquiry into Child Sex Abuse – Internet Strand

24th May 2019

The Independent Inquiry into Child Sex abuse (IICSA), chaired by Professor Alexis Jay OBE was set up in the wake of some serious high profile instances of non-recent child sexual abuse and because the government had some very grave concerns that some organisations were failing and were continuing to fail to protect children from sexual abuse.​

Debra Powell QC and James Berry represented the National Police Chiefs Council in the public hearings of the Internet strand which concluded this week.

The Internet strand involved an inquiry into institutional responses to child sexual abuse and exploitation facilitated by the internet with evidence being heard from law enforcement, victims of child sex abuse facilitated by the internet and the major technology companies including Facebook, Apple, Google and Microsoft.

The Inquiry is expected to produce its report on the Internet strand int he first quarter of 2020.

Gerry Boyle QCDavid Lawson and James Berry and Aaron Rathmell are or have been involved in other strands of the Inquiry.

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Inquests arising from the deaths in the London Bridge and Borough Market terror attack: Sarah Simcock acts for London Ambulance Service

1st May 2019

The Chief Coroner, His Honour Judge Mark Lucraft QC is holding Inquests into the deaths of the eight individuals killed on London Bridge and in Borough Market on 3 June 2017.

On 3 June 2017 eight people were killed when three attackers drove a van into members of the public on London Bridge before continuing on foot inflicting stab injuries before being shot and killed by armed police officers. Sarah Simcock of Serjeants’ Inn Chambers is representing the London Ambulance Service, who provided care and treatment to some of the deceased as well as the other victims of the attacks. The Coroner will conduct a wide-ranging inquiry into how the deceased came by their deaths as well as the overall response of the emergency services, including the LAS, to the attack.  The Inquests will commence on 7 May 2019 at the Central Criminal Court for approximately two months. The inquest transcripts are publicly available here.

For press coverage, please click here: The BBC, The Guardian.

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Serjeants’ Inn welcomes latest Silk arrival, Simon Fox QC

25th April 2019

Serjeants’ Inn is pleased to announce that Dr Simon Fox QC has joined its top-tier clinical negligence team, extending the senior expertise available to clients in this field. The silk team at the set has increased by 12 in three years, with 14 new tenants joining the award-winning chambers since early 2018.

Simon comments, “I have always admired Serjeants’ Inn as one of the premier specialist medical law chambers in the country. It matches my practice perfectly and I am delighted to be here.”

Simon is a medically qualified specialist clinical negligence silk with 25 years’ experience. Ranked as a Band One Clinical Negligence Silk by both directories, he has a nationwide reputation for using his medical background and expertise to fight difficult and complex cases on breach and causation. Clients cited by the directories describe him as “superb with clients” and “able to see points other barristers couldn’t and offer a new perspective.” His arrival brings the number of counsel in Chambers with a medical or clinical background to seven.

Simon is also an Assistant Coroner in Avon; he is the fifth Assistant Coroner in Chambers.

Catherine Calder, Joint CEO, notes “Simon is a stellar addition to Chambers. His arrival represents the latest step in our strategy to expand and enhance our service for clients.”

Serjeants’ Inn, which won the Legal 500 Client Award for Communications and Innovation this year, specialises in high-stakes cases, often involving important legal, ethical and social issues.

Its recent medical cases have included the decisions allowing both English and Californian surrogacy costs as a new head of damages in clinical negligence cases, one of the most significant judgments since SAAMCO on the scope of a professional’s duty of care, a case in which a father is challenging the public policy bar to recovery of damages for wrongful birth of a healthy child, and  a test case in which the claimant, who had fatally stabbed her mother, sought damages from the NHS Trust which was responsible for her mental health treatment prior to the killing, which was defeated on the grounds of illegality.

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Chris Daw QC and Elliot Gold act in misconduct hearing which finds PC Clarke Joslyn ‘continuously abusive’ to women

15th April 2019

Chris Daw QC and Elliot Gold acted successfully for Gwent Police in a long-running misconduct hearing against ex-PC Joslyn. The case, for which the investigation lasted four years, involved allegations of physical and psychological abuse of women over a period of years.

Elliot Gold acted alone in successfully resisting an appeal to the Independent Office for Police Conduct against the decision to refer the matter to a misconduct hearing, an attempt to bring judicial review proceedings against the appointment of the police misconduct hearing chair and then an abuse of process application.

Chris Daw QC and Elliot Gold then acted successfully for the police force in the full police misconduct hearing and subsequent ex-officer proceedings, after ex-PC Joslyn resigned. The panel found that the ex-officer had behaved in a manner amounting to gross misconduct and that it would have dismissed him had he not resigned.

The case was reported in the local press here and on the BBC website here:

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Claire Watson successfully defends interim relief application against NHS Trust following its decision to charge for treatment

3rd April 2019

Claire Watson is instructed by Susan Trigg of Bevan Brittan Solicitors in a judicial review claim against the Royal Free London NHS Foundation Trust arising from the Trust’s decision that she is not ordinarily resident in the UK and is therefore liable to pay for NHS treatment pursuant to the National Health Service (Overseas Visitors) Regulations 2015.  At a hearing before Lang J on 28 March 2018, the Claimant’s application for interim relief was refused on the basis that there was strong evidence that she was an ‘overseas visitor’ who had come to the UK for free cancer treatment.

For further details, please click here.

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The limits of a wish to die at home”: Emma Sutton acts in a further application following Simon Cridland’s appearance in the Court of Appeal in Hounslow Clinical Commissioning Group v RW & Ors [2019]

3rd April 2019

Emma Sutton was instructed by the Official Solicitor on behalf of RW in the case of Hounslow Clinical Commissioning Group v RW & Ors [2019] EWCOP12 which was heard by the Vice President of the Court of Protection, Mr Justice Hayden, on 29 March 2019. The application related to RW’s palliative care plan and such issues had been considered at an earlier hearing by Mrs Justice Parker and the Court of Appeal where Simon Cridland represented RW. It was determined (and upheld) in those proceedings that it was not in RW’s best interests to continue to receive CANH via a naso-gastric tube, but that he should receive end of life care at home.

The current application was made by the CCG due to concerns regarding the management of RW’s condition at home. This included the very unusual circumstance of RW’s necrotic leg (which self-detached), and the fact that RW had survived 10 months following the original decision. In relation to RW’s leg, Mr Justice Hayden emphasised that this was ‘disturbing and shocking evidence’ and stated that he had ‘never heard of a situation like this’. PT told the court that he had wrapped RW’s leg in cling film and put it in the freezer.

The court ultimately determined that although RW would have wished to die at home, that his son, PT, would continue to give him food and water which presented a real risk of asphyxiation and that RW required pain relief which was not accepted by PT. The court endorsed the CCG’s plan, as supported by the Official Solicitor, for RW to die peacefully either in hospital or a hospice.

Please see here for the Judgment and here for media coverage

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Angus Moon QC 1986 | 2006    Joint Head of Chambers
John Beggs QC 1989 | 2009    Joint Head of Chambers
Sir Robert Francis QC 1973 | 1992
James Watson QC 1979 | 2000
Adrian Hopkins QC 1984 | 2003
George Hugh-Jones QC 1983 | 2010
Michael Mylonas QC 1988 | 2012
Chris Daw QC 1993 | 2013
Tom Crowther QC 1993 | 2013
John de Bono QC 1995 | 2014
Dijen Basu QC 1994 | 2015
Nageena Khalique QC 1994 | 2015
Michael Horne QC 1992 | 2016
Katie Gollop QC 1993 | 2016
Simon Fox QC 1994 | 2016
Bridget Dolan QC 1997 | 2016
Gerard Boyle QC 1992 | 2017
Sarah Clarke QC 1994 | 2017
Debra Powell QC 1995 | 2017
Jon Holl-Allen QC 1990 | 2018
Jemma Lee 2010
Liam Duffy 2012
His Honour Brian Barker CBE QC 1969 | 1990    Associate Member
Natalie Cargill 2016    Associate Member
Huw Lloyd 1975    Door Tenant
Siobhan Goodrich 1980    Door Tenant
Susan Burden 1985    Door Tenant
Charles Foster 1988    Door Tenant
Malcolm Lim 1989    Door Tenant
Anthony Jackson 1995    Door Tenant
Benedict Wray 2009    Door Tenant