The Clarity of Laws

  • Don’t be fooled, retro not always curative, e.g Roehm Purge, killed 100 ppl, then Hitler made retroactive statute.
  • Second perspective is not so much contribution retro makes to inner morality of law, but rather to circumstance that it unavoidably attaches in some measure to the office of judge. – Check more at Dentist Calgary
    • How? If A and B both have equally good claim on face of statute, and judge decides the case, he is inevitably engaging in an act of retrospective legislation.
    • Also, consider that after A v B decided, C and D have dispute and C refuses to settle because he thinks A v B decision was wrong and that it should be overruled. If overruling is made retrospective, then D loses out though he relied on a legal decision that was clearly in his favour.
  • These situations concerned civil disputes. Criminal cases, different considerations apply. Recognised in cases involving overruling of precedents, eg where court construed a criminal statute not to apply to a certain form of activity and then later changes its mind. – if this is projected retrospectively, men who are walking free on streets would be branded as criminals.
    • Some say that different consideration apply to cases where court settles previously unresolved uncertainties in app of criminal statute and that such cases must be treated like civil case of A v B. Fuller> this is wrong,
    • Fuller suggest that principle ought to be recognised where if D should not be held guilty of crim where the statute was applied to his situation was so unclear that had it been equally unclear in all applications, it would have been void for uncertainty. – this would eliminate false analogy to civil suits

 

  • Most difficult problem of all: knowing when an enactment should properly be regarded as retrospective.
    • Simple case: statute wants to make criminal an act tht was legal when committed.  Most repulsive in criminal law.
    • Contrast case: tax law to impose ftax on financial gains realiszed in 1960 at time when such gains were not subject to tax.  May be unjust, but not strictly speaking retroactive.   But ordinary persons would say this is also retroactive and to argue it is otherwise is quibble.
    • Answer?: Look, men rely on law as it is all the time, tax, property, contract, etc. If all men always made secure against change, law would be ossified forever.
    • Counter: tax law different from contract – tax coax men into acting certain way, contract more guiding, more a tool.
  • State + subject relationship bit like a contract.
  • Not all of retro analysis is difficult and obscure.
  • As with the other 7 desiderata that make up  internal morality, difficulties and nuances should not blind us that it is not hard to recognize blatant indecencies, and don’t have to go as far as hitlerite Germany.
    • E.g Statute that said “anyone who has been convicted of crime of violence may not receive any firearms” ever. This over clever attempt was stricken down by the supreme court in Tot v United States.

Right to return

Entitled to return to work to the job in which she was employed before her absence with her

seniority, pension rights and similar rights, and terms and conditions which are no less

favourable than before.her OML. It also counts towards her period of continuous

employment.

Failure to return after OML

Will not terminate contract of employment, court will look at intention of employee. If she

intended not to return then they will interpret her act as terminating the contract. Failing any

intention, employers will need to discover the reason for a late return before taking action.

Failure to treat her the same as any other late returner could lead to discrimination or UD.

Compulsory ML Employer must not let a woman return to work within the 2 week period from childbirth, it is a criminal offence.

AML Period

If at the start of the 14 th week before EWC, a woman has completed 26 weeks continuous employment, she will be entitled to AML. It will commence on the day after the last day of

OML and continue for up to 26 weeks. She does not have to tell her employer her intention to take this when she notifies him of her OML.

Rights during AML – Check the Notary Public London website

Employment contract continues throughout AML, including certain terms and conditions, for

example the benefit of her employer’s mutual trust and confidence, terms of termination of

her contract, compensation in event of redundancy and disciplinary and grievance

procedures. The woman is bound by good faith and any termination terms of her contract.

The woman is not entitled to remuneration or benefit of normal terms and conditions.

Returning to work after AML

No notice needed if return intended at end of AML, however 28 days notice is needed if she

wishes to return sooner. Again, if she fails employer entitled to postpone her return for up to

28 days.

Statutory right to return to the job in which she was employed before or if not reasonably

practicable for the employer to allow her to return to that job, for a reason other than

redundancy, to a suitable and appropriate job on no less favourable terms and conditions,

pension rights etc.

If the offer is not suitable, the woman can bring a complaint for UD and perhaps sex

discrim/wrongful dismissal.

An employee who wishes to return on different terms and conditions ie part time, may do so

as they may have a claim for indirect sex discrim if employer refuses, there is no statutory

right.

Sickness at end of OML or AML

Where unable to return to work after OML or AML due to sickness, the normal contractual

arrangements for sickness will apply. She will be treated like any other employee.

3

Dismissal – Special Protection Redundancy

 During O or AML, if it’s not practicable for the employer, by reason of redundancy, to

continue to employ the woman under her existing T&C, she must be offered any

suitable alternative vacancy (SAV), even if she’s not the most suitable candidate.

 If there’s no s.a.v. then she must be objectively selected for redundancy. If the

woman is dismissed by redundancy, due to her pregnancy or by non compliance with

this provision, then it will be UD.

Dismissal – special protection Automatically Unfair Dismissal s99 ERA; s1 SDA

RB197, 9.9

ï‚· A woman who is dismissed is entitled under s99, to be regarded as UD if the reason

is connected with:

a) pregnancy of employee;

b) the fact that she has given birth and the dismissal ends the woman’s

OML or AML period;

c) the fact that she is on maternity suspension;

d) the fact that she took OML or sought to take it or availed herself of the

benefits of any T&Cs;

e) the fact that she took or sought to take AML;

f) failed to return after O or AML where employer did not give an end date

of her O or AML, or employer gave less than 28 days notice of end of O

or AML and it wasn’t practical for her to return.

ï‚· Reasons a) and b) above, apply protection to the end of OML or AML;

ï‚· c-f) reasons extend beyond.

ï‚· Employee is not required to prove her dismissal was for one of the above reasons,

she only has to adduce evidence to create a presumption, and if the employer is

arguing the reason was other than the pregnancy then it is up to him to prove this.

If the reason is found to be within one of the above, the employer cannot argue it

was reasonable and it will be automatically unfair.

ï‚· Defence:

o small employer, ie less than 5 employees (cos not practicable to come back);

o some other substantial reason (SOSR);

o no suitable alternative vacancy (SAV).

o REMEMBER – for direct D the e/er cant plead justification unless he’s a small

e/er (as above)

ï‚· If woman dismissed during her pregnancy or during her O or AML then if based on

her pregnancy that will be discriminatory on grounds of sex without need for male

comparator – direct discrimination on grounds of sex. Neil Buzzard reckons this is

actually indirect D cos it’s not cos she’s a woman its cos she’s pregnant.

ï‚· If woman is dismissed after O or AML then it may be discriminatory, but court will

have to consider whether she was treated less favourably than a man was or would have been treated (ignoring time off work whilst on ML) therefore need a comparator.

Â