The Future Lawyer Weekly Update – w/c 17th February

The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.

Employment law

Solicitor wins age discrimination case

Reported by Ellena Mottram

An employment tribunal has ruled that a senior solicitor, Raymond Levy, has been discriminated against because of his age following his application for a job was rejected on the ground he was expensive.

Mr. Levy was denied the role at the law firm despite being the only person who interviewed for the role. The Manchester Employment tribunal ruled that ‘expensive’ was synonymous with being an ‘experienced and older solicitor’. It was also reported that the firm changed the job requirements to suit junior solicitor after rejecting Mr. Levy for the role.

An experienced commercial property lawyer, Mr. Levy, qualified as a solicitor in 1985 and worked in a number of London law firms before being made redundant from a previous position. He applied for a role that required a solicitor with at least five years post qualification experience and was informed there was a ‘fairly urgent’ need to meet the role.

Mr. Levy was informed the law firm wanted to replace a senior associate with a salary of £42,000, which he incorrectly noted down as £45,000. He asked for approximately £50,000 and was asked if he could start ‘next Monday’ but that the decision was subject to a meeting between the heads of department.

Notes from the meeting indicated the interviewing solicitor made notes which included the phrase “Expensive. Doesn’t cover all our needs.” He was subsequently emailed on the 12th March informing him the firm no longer wanted to offer him the role and the board had decided to aim for a more junior solicitor with three-to-five years post qualified experience.

Following this, Mr. Levy bought a claim for discrimination citing his age was the factor the law firm did not offer him the role.

The tribunal held that Mr. Levy met all the qualifications required for the role and it was only when he was deemed expensive that the firm decided to change the requirements for the role, thus making Levy a victim of age discrimination. It was further held there was no credible, coherent and consistent explanation for the firms’ decision.

The firm was ordered to pay £13,188 for loss of earnings, an award which was mitigated on the basis that the judge believed a clash of personalities would inevitably have arisen and because the firm ceased working in commercial property transactions a few months following his appointment.

You can find more here or here.

Cybersecurity

Ofcom’s expanded role to police the internet

The Office of Communications (“Ofcom”), is to be handed responsibility holding online platforms to account for illegal and harmful content as Britain’s first internet watchdog. This move comes from a consultation the government launched last year about its proposals to regulate the internet. The online harms white paper intends to impose a statutory “duty of care” on companies to protect their users from illegal material. Companies that come within the scope of this new statutory duty would include Facebook, Twitter, and YouTube, which “allow users to share or discover user-generated content or interact with each other online.”

Under the current liability regime, platforms are protected from legal liability for any content they host until they are notified of its existence or their technology has identified such content. Only when the platform has subsequently failed to act expeditiously to remove it from their services will they be liable. Thus, under the new regime, Ofcom will decide when companies have breached that “duty of care” and then determine the appropriate punishment – fines, prosecution of senior managers or a total ban. Any regulatory action will be required to be “fair, reasonable and transparent” and is designed to incentivise companies to take reasonable steps quickly to protect its users from illegal content on their platforms.

Many concerns indicate that the term “duty of care” would create legal uncertainty and impact freedom of expression. The regulation will need to differentiate between (a) illegal content and (b) harmful, but legal content. Harmful material will include terrorist content, child sex abuse, harassment, and fake news. In safeguarding freedom of expression, Ofcom will only ensure that illegal content is removed expeditiously from the companies’ platforms. Further, to facilitate a “culture of transparency, trust, and accountability”, companies must explicitly state what content and behavior they deem to be acceptable on their sites and enforce this consistently and transparently. Ofcom will also be granted the power to require annual transparency reports to ensure that companies proactively report on both emerging and known harms.

Currently, however, the government has not provided a distinction between legal and illegal content nor the consequences of freedom of expression. Moreover, the requirement for platforms to remove content quickly may risk removing “false positives”, i.e. material that is not actually infringing. Accordingly, this type of censorship might dictate the content British internet users can see and impact their daily interaction with such platforms.

Additionally, this new framework means that smaller companies may struggle to keep up with the requirements, whereas large companies with the resources and legal expertise will likely be able to comply with the requirements. Accordingly, Ofcom will be required to assess the action of the companies proportionate to the size of their resources and the age of their users.

Currently, the consultation response does not offer much clarity on the issues regarding “duty of care”, the distinction between legal and illegal content and the consequences of freedom of expression. The regulation provides minimal guidance and will grant Ofcom the ability to determine what is a breach and what is not.

Many criticisms regarding the proposal surround the lack of clarity of how breaches could be penalised. It is hoped and expected that the government will be more forthcoming with the implementation of this framework and how Ofcom intends to expand into the realm of internet regulation.

Find out more here or here.

Human Rights

A treatment ‘cruel, inhuman or degrading’ concerning refugees and asylum seekers which doesn’t warrant prosecution, according to ICC office

Reported by Emma Ducroix

The international criminal court was established in 2002 to try individuals charged with “the gravest crimes of concern to the international community, such as genocide, war crimes, and crimes against humanity”. Australia’s offshore detention regime is a “cruel, inhuman, or degrading treatment” and unlawful under international law, the international criminal court’s prosecutor has said.

But the office of the prosecutor has decided not to prosecute the Australian government, saying that while the imprisonment of refugees and asylum seekers formed the basis of a crime against humanity, the violations did not rise to the level to warrant further investigation.

In a letter, the office of the ICC prosecutor said conditions in the Australian-run camps were dangerous and harsh, and an “environment rife with sporadic acts of physical and sexual violence committed by staff at the facilities”. “These conditions of detention appear to have constituted cruel, inhuman, or degrading treatment (“CIDT”), and the gravity of the alleged conduct thus appears to have been such that it was in violation of fundamental rules of international law.

“In terms of the conditions of detention and treatment, the office considers that some of the conduct appears to constitute the underlying act of imprisonment or other severe deprivations of physical liberty under article 7(1)(e) of the statute [crimes against humanity].”

But the office of the prosecutor said the matters did not fall within the jurisdiction of the court and did not demonstrate the “contextual elements” to warrant further investigation for prosecution. African countries have argued the court has been disproportionately and unfairly focused on crimes committed in Africa. The court has also been criticised for securing too few convictions.

Australian MP Andrew Wilkie first wrote to the ICC in 2014, alleging the government of then prime minister Tony Abbott was breaching international law by engaging in imprisonment, deportation and the forcible transfer of a population. But Wilkie has remained in regular correspondence with the court since 2014, providing it with evidence of abuses including: deaths in detention through murder and medical neglect; the indefinite detention of children; forced family separation; and the details of the Nauru Files, published by the Guardian detailing the detention system’s own reports of rape, sexual abuse, self-harm, and child abuse in offshore detention.

“The ICC’s response is a remarkable condemnation of the cruelty of the Australian government’s asylum seeker policies,” Wilkie said. “We’ve long known that the government’s response to asylum seekers has been barbaric, inhumane and expensive, but now there can be no doubt.”

“Although the ICC advised me that a number of matters I referred were beyond the court’s jurisdiction, recent developments in the government’s asylum seeker policies have opened up new avenues for further investigation and I am currently seeking legal advice as to the next step forward.”

Human rights lawyer Greg Barns, who worked with Wilkie in presenting evidence to the court, said the ICC had made it clear Australia’s offshore detention regime was a breach of the Rome statute.

The Rome statute that created the court has been ratified by 123 countries, including Australia, but several major countries – including China, India, Russia, and the US – have refused to join.

“It is extraordinary and shameful that a nation which purports to believe in the rule of law should be found to be in breach of the international law which outlaws cruelty and inhumanity.”

Find out more here.

Life Support Battle

Parents of brain-damaged baby lose a legal battle

Reported by Emma Ducroix

Father describes decision as ‘terrible’ after appeals court rules son is brain stem dead

The parents of a four-month-old baby with brain damage have lost a legal battle to continue his life support treatment.

Karwan Ali, 35, and Shokhan Namiq, 28, appealed after a high court judge ruled that Midrar Ali was brain stem dead and doctors at St Mary’s hospital in Manchester could withdraw treatment. On Friday, the court of appeal dismissed the challenge and upheld the earlier ruling.

Sir Andrew McFarlane, who is president of the family division, Lord Justice Patten and Lady Justice King ruled that Midrar’s parents did not have an arguable case and that medics could legally “cease to mechanically ventilate” the child.

At the high court in Manchester in January, Justice Lieven came to the same conclusion after examining the evidence.

But the family persisted in their battle for treatment to continue, saying that doctors could not be sure Midrar’s condition would not improve, and asked appeal judges to overturn the decision. The news was announced by McFarlane, who is the most senior family court judge in England and Wales, at a further hearing on Friday.

He said that “awfully” Midrar no longer had a brain recognisable as such and that no other conclusion had been open to Lieven. “There is no basis for contemplating that any further tests would result in a different outcome,” he said. “The factual and medical evidence before was more than sufficient to justify the findings.”

Midrar suffered brain damage after being starved of oxygen during complications caused when the umbilical cord came out before his birth. Manchester University NHS Foundation maintained that continuing treatment was undignified, and that Midrar had always been on a ventilator and never breathed independently.

It had previously been said his organs were deteriorating and that he should be allowed a “kind and dignified death”.

Lawyers representing the trust said three tests had confirmed brain stem death and Midrar had died on 1 October 2019, when he was 14 days old.

Find out more here.