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16 December
Prologue : For many years, employers' organizations lived with a difficult decision in the area of law (now settled against those whom they represented) of entitlement to holiday pay when off on long-term sickness absence. The employers' specious argument, which their mouth-pieces had come up with, was essentially that holiday is for people who are at work and who need a break from work, because they wanted to deny these other people what the Working Time Regulations 1998 appeared to offer them (and so save money), by claiming that they did not need holiday (or to be paid for it).
The claimants, by contrast, had an incentive to try to get paid holiday, if they had exhausted any entitlement to full pay. The one difficult decision was a blemish, but the employers' organizations were best ignoring what that one Employment Tribunal had said - it was not binding on any other Employment Tribunal, because both would be making judgements at first instance, unlike an appeal to the next body up, the Employment Appeal Tribunal.
Why risk going to appeal, losing, and then having a binding precedent ? It is now what is called settled law that the employers' argument was wrong, but how much did they save by sitting on their hands in the intervening time (that difficult decision was around 2001) ? Time for some Tweets :
An interesting case, @ClinpsychLucy - will the ACC politically not appeal the decision, rather than a higher court inconveniently agrees ?
— THE AGENT APSLEY (@THEAGENTAPSLEY) December 16, 2013
If one reads the very short news report, the ACC is quoted for its views at the end :
ACC said it would consider whether this decision "has any wider impact" but took the view it would have "limited" value as a precedent and it would "continue to carefully consider each person's unique situation and circumstances".
Who stands to gain - cui bono ?, in legal Latin - by talking down the significance of the ruling (the piece is vague, because it talks about appeals, but without making clear what status they had, though a district court is usually the lowest level of court) ? And how much money are we arguing about ? :
As usual, peanuts to highly paid judges / experts have to be fought for by claimants, @ClinpsychLucy: The maximum weekly allowance is $84.97
— THE AGENT APSLEY (@THEAGENTAPSLEY) December 16, 2013
I cannot see that the ACC, if the New Zealand system operates a similar law of precedent, has any choice other than to swallow paying this handsome (and backdated) sum - it will chip away at individual claimants (at goodness knows what expense !) who get as far as this one, making each one prove it more likely than not that abuse gave rise to that loose bundle of symptoms called schizophrenia (some of which one can have, others be free from, and which is no effective predictor of effective drug therapy), case by case, saying that their 'situation and circumstances' differ (a sure tautology ?).
The only hope is for the question to get to a higher court (since this does not appear to be one), and what compromises or concessions is it in the ACC's interests to make to those individuals who fight this far ? Of course, as with the employers' organizations, they do not want what is called an appellate jurisdiction to get anywhere near the question - they do not want an aggrieved claimant, turned down at this level, to take it further and risk a precedent being made.
Is it all cynical ? Of course it is. When Thatcher's government tried to deny those claiming asylum any resource to public funds (depending on rules about when they first claimed asylum), the courts decided that, if it had intended to make an implied repeal of the National Assistance Act 1948 (for no Parliament can bind any other Parliament not to legislate the opposite - part of what is called Parliamentary sovereignty), it would have had to use clearer language. Judges do not just have to roll over and not do justice, and they can and do make our law in a significant way.
Precedent is part of that, and opponents are quick to say that one case is materially different from another (and thus that there is no binding precedent, known as distinguishing a case), or that, even if it did apply, there are, say, six reasons why the claimant should get nothing (or a nominal amount). Judges know the tricks, because they once played them, and they should try to get to a just outcome.
So the possible good news for those in the UK diagnosed with this 'schizophrenia' is that cases from the Commonwealth have persuasive force or authority, which means that, even if judgement were binding in New Zealand, it is not here, but judges will listen to argument that it is relevant to consider what it says.
Postlude (by Tweet) :
Of course, an insurance-funded claim on the essential facts against, say, a Catholic orphanage could end up going to appeal, @ClinpsychLucy
— THE AGENT APSLEY (@THEAGENTAPSLEY) December 16, 2013
Taking which further here...
If you want to Tweet, Tweet away here
Unless stated otherwise, all films reviewed were screened at Festival Central (Arts Picturehouse, Cambridge)
