The duty on employers to provide reasonable accommodation is a well‐established component of disability discrimination legislation, yet it continues to generate litigation in many jurisdictions. This article examines a recent decision of the Irish Supreme Court concerning the extent of the employer's obligations where, after having acquired an impairment, a worker is no longer able to perform all of the functions of her original job. The case also addressed the question of what procedures should be followed by an employer when considering the provision of reasonable accommodation, as well as the need for courts to justify awards of compensation. The issues in Irish law were intertwined with obligations arising from EU and international law instruments. Therefore, the decision is pertinent for other jurisdictions confronting similar challenges.
{"title":"Disability, Reasonable Accommodation and the Employer's Obligations: Nano Nagle School V Daly","authors":"D. Ryan, M. Bell","doi":"10.1111/1468-2230.12553","DOIUrl":"https://doi.org/10.1111/1468-2230.12553","url":null,"abstract":"The duty on employers to provide reasonable accommodation is a well‐established component of disability discrimination legislation, yet it continues to generate litigation in many jurisdictions. This article examines a recent decision of the Irish Supreme Court concerning the extent of the employer's obligations where, after having acquired an impairment, a worker is no longer able to perform all of the functions of her original job. The case also addressed the question of what procedures should be followed by an employer when considering the provision of reasonable accommodation, as well as the need for courts to justify awards of compensation. The issues in Irish law were intertwined with obligations arising from EU and international law instruments. Therefore, the decision is pertinent for other jurisdictions confronting similar challenges.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-06-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127160381","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In 2019, Parliament enacted the Stalking Protection Act. The Act introduces the stalking protection order; a civil measure the breach of which is an offence. The role of courts in assessing whether similar behaviour orders are penalties has attracted significant scholarly attention. In this article, I instead examine the roles of Government and Parliament in developing the stalking protection order. My central contention is that the Home Office undertook a problematic consultation and the issues to which it gave rise were not addressed in later parliamentary debates. The result was the enactment of a coercive measure of unclear purpose and questionable efficacy. Assessing the roles of the executive and legislature in developing the SPO also allows for fresh insight into wider discussions of behaviour orders. Specifically, I question the language of ‘prevention’ that is ever-present in such discussions and describe an important development for debates on whether behaviour orders are penalties.
{"title":"The Problematic Development of the Stalking Protection Order","authors":"Rory Kelly","doi":"10.1111/1468-2230.12508","DOIUrl":"https://doi.org/10.1111/1468-2230.12508","url":null,"abstract":"In 2019, Parliament enacted the Stalking Protection Act. The Act introduces the \u0000stalking protection order; a civil measure the breach of which is an offence. The role of courts \u0000in assessing whether similar behaviour orders are penalties has attracted significant scholarly \u0000attention. In this article, I instead examine the roles of Government and Parliament in \u0000developing the stalking protection order. My central contention is that the Home Office \u0000undertook a problematic consultation and the issues to which it gave rise were not addressed \u0000in later parliamentary debates. The result was the enactment of a coercive measure of unclear \u0000purpose and questionable efficacy. Assessing the roles of the executive and legislature in \u0000developing the SPO also allows for fresh insight into wider discussions of behaviour orders. \u0000Specifically, I question the language of ‘prevention’ that is ever-present in such discussions \u0000and describe an important development for debates on whether behaviour orders are penalties.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"148 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133770996","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is long established that a ‘reasonable offer’ for a petitioner's shares can defeat an unfair‐prejudice petition. Lord Hoffmann gave guidance about such offers in O'Neill v Phillips. Now, in Prescott v Potamianos, the Court of Appeal has set out three factors that help to determine in general whether an offer is ‘reasonable’. Those factors are: the value offered; the likelihood of implementation; and the proximity to the unfairly prejudicial conduct. The Court's guidance is useful for lawyers and their clients, as well as being broadly favourable for petitioners. But the Court emphasised that the unfair‐prejudice jurisdiction is based on fairness and so requires a considerable degree of flexibility. Such flexibility impairs the certainty that Lord Hoffmann was seeking to promote, and may create difficulties for parties making or receiving offers.
长期以来，对于申请人的股份的“合理报价”可以击败不公平偏见的请愿。霍夫曼勋爵(Lord Hoffmann)在奥尼尔诉菲利普斯案(O'Neill v . Phillips)中就此类要约提供了指导。现在，在Prescott v Potamianos案中，上诉法院列出了三个因素，可以帮助确定要约是否“合理”。这些因素是:提供的价值;执行的可能性;以及对不公平的偏见行为的接近。法院的指导对律师和他们的委托人很有用，对上访者也很有利。但法院强调，不公平损害管辖权是建立在公平的基础上的，因此需要相当程度的灵活性。这种灵活性损害了霍夫曼勋爵试图促进的确定性，并可能给提出或接受提议的各方造成困难。
{"title":"‘Reasonable Offers’ as a Defence to Unfair Prejudice Petitions: Prescott v Potamianos","authors":"Anthony Pavlovich","doi":"10.1111/1468-2230.12505","DOIUrl":"https://doi.org/10.1111/1468-2230.12505","url":null,"abstract":"It is long established that a ‘reasonable offer’ for a petitioner's shares can defeat an unfair‐prejudice petition. Lord Hoffmann gave guidance about such offers in O'Neill v Phillips. Now, in Prescott v Potamianos, the Court of Appeal has set out three factors that help to determine in general whether an offer is ‘reasonable’. Those factors are: the value offered; the likelihood of implementation; and the proximity to the unfairly prejudicial conduct. The Court's guidance is useful for lawyers and their clients, as well as being broadly favourable for petitioners. But the Court emphasised that the unfair‐prejudice jurisdiction is based on fairness and so requires a considerable degree of flexibility. Such flexibility impairs the certainty that Lord Hoffmann was seeking to promote, and may create difficulties for parties making or receiving offers.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"15 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128632192","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development the Supreme Court unanimously declared that the ban on different‐sex civil partnerships was incompatible with Articles 8 and 14 of the European Convention on Human Rights. In a strikingly robust and, at times, acerbic manner, the Court systematically dismantled the Secretary of State's request for tolerance of a discriminatory and unsustainable legal position. The decision represents a clear victory for those campaigning for reform and the issuing of a declaration of incompatibility by the Court is likely to have influenced the later announcement by Prime Minister Theresa May in October 2018 that different‐sex civil partnerships will ultimately be introduced in England and Wales.
{"title":"Equal Civil Partnerships, Discrimination and the Indulgence of Time: R (on the Application of Steinfeld and Keidan) V Secretary of State for International Development","authors":"A. Hayward","doi":"10.1111/1468-2230.12437","DOIUrl":"https://doi.org/10.1111/1468-2230.12437","url":null,"abstract":"In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development the Supreme Court unanimously declared that the ban on different‐sex civil partnerships was incompatible with Articles 8 and 14 of the European Convention on Human Rights. In a strikingly robust and, at times, acerbic manner, the Court systematically dismantled the Secretary of State's request for tolerance of a discriminatory and unsustainable legal position. The decision represents a clear victory for those campaigning for reform and the issuing of a declaration of incompatibility by the Court is likely to have influenced the later announcement by Prime Minister Theresa May in October 2018 that different‐sex civil partnerships will ultimately be introduced in England and Wales.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129376869","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.
{"title":"Reason‐Giving in Administrative Law: Where are We and Why Have the Courts Not Embraced the ‘General Common Law Duty to Give Reasons’?","authors":"J. Bell","doi":"10.1111/1468-2230.12457","DOIUrl":"https://doi.org/10.1111/1468-2230.12457","url":null,"abstract":"This article has two aims. Firstly, it explores a body of modern challenges to administrative reason‐giving, decided in the five‐year period 2014–2018. Three main themes are drawn out: outright failures to give reasons now seem to be a rare occurrence; a number of considerations help to ensure that at least an outline of reasons is usually offered by decision‐makers; common law fairness plays a limited role in testing the adequacy of reasons. Secondly, it addresses the question of why the courts have not embraced a ‘general common law duty to give reasons.’ Four factors are discussed: doubts that introducing a general duty would add something of substance to the law; difficulties inherent in developing a general formulation of the reasons required; weaknesses in the ‘hortatory’ case for a general duty and weaker commitment on the part of judges than academics to generality as a central feature of administrative law doctrine.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133528641","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant's negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences. It misses an opportunity for the Court to provide guidance on developments in tort like preventive damages, claimant‐specific loss, and the broader raison d'être of tort. A narrow and constrained adjustment to the law to permit recovery in negligence of pure economic loss for preventive damage could have achieved the same result without relying on somewhat convoluted mental gymnastics.
{"title":"Dryden V Johnson Matthey: The Boundaries of Actionable Damage","authors":"Jarret J. Huang","doi":"10.1111/1468-2230.12428","DOIUrl":"https://doi.org/10.1111/1468-2230.12428","url":null,"abstract":"In Dryden v Johnson Matthey, the claimants sought to recover in tort for becoming sensitised to platinum salts by the defendant's negligence. The Supreme Court found, unanimously, that merely becoming sensitised, as opposed to developing an allergic reaction, sufficed as actionable damage. However, the court only provided two ‘indicative factors’ for when damage was ‘actionable’: whether there had been some impairment, and whether the effect of that impairment was ‘more than negligible’. This approach is unclear, in tension with other parts of the judgment, and produces undesirable broader consequences. It misses an opportunity for the Court to provide guidance on developments in tort like preventive damages, claimant‐specific loss, and the broader raison d'être of tort. A narrow and constrained adjustment to the law to permit recovery in negligence of pure economic loss for preventive damage could have achieved the same result without relying on somewhat convoluted mental gymnastics.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133460123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Supreme Court's recent reconsideration of the ‘transferred loss’ exception stopped short of clarifying why it is justified at all. The usual candidates are that it applies to loss transferred with property, or operates more broadly to vindicate the claimant's interest in performance. This note suggests that neither is a sound basis for the rule, and that the promisee ought generally to be entitled to sue for loss suffered by third parties, but is obliged to pass on the damages he recovers.
{"title":"Reconsidering Transferred Loss","authors":"Andrew Trotter","doi":"10.1111/1468-2230.12425","DOIUrl":"https://doi.org/10.1111/1468-2230.12425","url":null,"abstract":"The Supreme Court's recent reconsideration of the ‘transferred loss’ exception stopped short of clarifying why it is justified at all. The usual candidates are that it applies to loss transferred with property, or operates more broadly to vindicate the claimant's interest in performance. This note suggests that neither is a sound basis for the rule, and that the promisee ought generally to be entitled to sue for loss suffered by third parties, but is obliged to pass on the damages he recovers.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"139 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124432428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.
{"title":"Constitutional Directives: Morally‐Committed Political Constitutionalism","authors":"Tarunabh Khaitan","doi":"10.1111/1468-2230.12423","DOIUrl":"https://doi.org/10.1111/1468-2230.12423","url":null,"abstract":"About 37 state constitutions around the world feature non‐justiciable thick moral commitments (‘constitutional directives’). These directives typically oblige the state to redistribute income and wealth, guarantee social minimums, or forge a religious or secular identity for the state. They have largely been ignored in a constitutional scholarship defined by its obsession with the legitimacy of judicial review and hostility to constitutionalising thick moral commitments other than basic rights. This article presents constitutional directives as obligatory telic norms, addressed primarily to the political state, which constitutionalise thick moral objectives. Their full realisation—through increasingly sophisticated mechanisms designed to ensure their political enforcement—is deferred to a future date. They are weakly contrajudicative in that these duties are not directly enforced by courts. Functionally, they help shape the discourse over a state's constitutional identity, and regulate its political and judicial organs. Properly understood, they are a key tool to realise a morally‐committed conception of political constitutionalism.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"20 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-03-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127631477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 16 July 2018, a new corporate governance code was published. Like previous iterations, it applies on a ‘comply‐or‐explain’ basis, whereby companies are required to either comply with provisions or explain reasons for non‐compliance. However, the new code substantially simplified the previous version of the code in an attempt to attenuate the process of ‘box‐ticking’. Box‐ticking manifests itself firstly, by companies complying with the letter rather than the spirit of the provisions, and, second, by companies not utilising the inherent flexibility of the code to implement their optimum firm‐specific governance structures by explaining rather than complying. This article elucidates the history of box‐ticking, and the reasons why companies succumb to it, since Adrian Cadbury pioneered the concept of ‘comply‐or‐explain’ in 1992, before proposing an exclusively principles‐driven approach to the corporate governance code which would alleviate box‐ticking and fulfill the original aspirations of Cadbury over a quarter of a century ago.
{"title":"Thinking Outside the Box – Eliminating the Perniciousness of Box‐Ticking in the New Corporate Governance Code","authors":"Bobby V. Reddy","doi":"10.1111/1468-2230.12415","DOIUrl":"https://doi.org/10.1111/1468-2230.12415","url":null,"abstract":"On 16 July 2018, a new corporate governance code was published. Like previous iterations, it applies on a ‘comply‐or‐explain’ basis, whereby companies are required to either comply with provisions or explain reasons for non‐compliance. However, the new code substantially simplified the previous version of the code in an attempt to attenuate the process of ‘box‐ticking’. Box‐ticking manifests itself firstly, by companies complying with the letter rather than the spirit of the provisions, and, second, by companies not utilising the inherent flexibility of the code to implement their optimum firm‐specific governance structures by explaining rather than complying. This article elucidates the history of box‐ticking, and the reasons why companies succumb to it, since Adrian Cadbury pioneered the concept of ‘comply‐or‐explain’ in 1992, before proposing an exclusively principles‐driven approach to the corporate governance code which would alleviate box‐ticking and fulfill the original aspirations of Cadbury over a quarter of a century ago.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129397945","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that Gunther Teubner's theory of societal constitutionalism can be used to examine the realities of citizenship in contemporary society. Teubner's thought illuminates how the rise of global law has directed classical practices of citizenship – claims to rights and participation in law making – away from centralized political institutions, and located them in distinct functional spheres. On this basis, we see that the integration of the democratic citizen only evolved as society assumed an acentric sectoral design, and we observe that the core processes of national integration only approached completion in a post‐national constellation. However, it is also argued here that the contemporary figure of the citizen appears, not as a figure that contradicts, but as a figure that arises directly from the classical form of national citizenship. This fact may be obscured by Teubner's emphasis on societal constitutionalism as a normative construct that emerges beyond the state.
{"title":"The Citizen of Many Worlds: Societal Constitutionalism and the Antinomies of Democracy","authors":"C. Thornhill","doi":"10.1111/jols.12104","DOIUrl":"https://doi.org/10.1111/jols.12104","url":null,"abstract":"This article argues that Gunther Teubner's theory of societal constitutionalism can be used to examine the realities of citizenship in contemporary society. Teubner's thought illuminates how the rise of global law has directed classical practices of citizenship – claims to rights and participation in law making – away from centralized political institutions, and located them in distinct functional spheres. On this basis, we see that the integration of the democratic citizen only evolved as society assumed an acentric sectoral design, and we observe that the core processes of national integration only approached completion in a post‐national constellation. However, it is also argued here that the contemporary figure of the citizen appears, not as a figure that contradicts, but as a figure that arises directly from the classical form of national citizenship. This fact may be obscured by Teubner's emphasis on societal constitutionalism as a normative construct that emerges beyond the state.","PeriodicalId":142986,"journal":{"name":"Law & Society: Private Law eJournal","volume":"102 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126333452","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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