No problem here?

Photo by James Eades on Unsplash

In the second of two articles for Black History Month, my friend and colleague, Tony Adams reviews No Problem Here: Understanding Racism in Scotland (Luath, 2018) Neil Davidson, Minna Liinpaa, Maureen McBride and Satnam Virdee (eds.). This article originally appeared in The Scottish Left Review (Issue 106 July/August 2018).

Racism in Scotland is often relegated to the back burner. Even when the issue of racism is broached by anti-racists campaigners the stock responses they are met with is that ‘Things aren’t as bad as all that, you exaggerate; you’re indulging in special pleading or you must be paranoid’. Little wonder there is this widely held view both by politicians and academics that ‘there is no problem here’. Ethnic minorities are congratulated for integrating better and there is a welcoming attitude towards refugees and migrants.

Meanwhile research into the historical record and contemporary reality tells a different story. The racialized outsider faces discrimination in education, jobs, housing and at the hands of the police and criminal justice system. Racism in Scotland is, therefore, not a side issue and it is not peripheral either. It is central to the way things work. The question of racism in Scotland and the interplay, of race class, nationalism and other intersecting issues are very focal to this edited book. It brings together the views of academics, activists and anti-racism campaigners who argue that it is vital that the issue of racism be brought into public discourse.

In contrast to England, there has been relatively little public discussion about the historical or contemporaneous structuring power of racism in Scotland. ‘We wish to dig beneath the ‘race
blind’ narrative that Scotland and its elites have crafted for many years, to perhaps unsettle them a little, so that we might begin to open up space for writing a historical sociology of racism in Scotland’ the book says. Its contributors ‘contend that the narrative of an absent racism in Scottish history and that the Scots are more egalitarian, more likely to place an emphasis on collectivism over individualism and on government intervention over self-reliance reinforces the myth that Scotland does not have a serious racism problem’. Instrumental to the consolidation of this powerful myth that ‘there is no problem here’ is that memorable Scottish phrase, ‘We’re a’ Jock Tamsin’s bairns’.

Such myth making has the effect of deflecting attention away from the disproportionate role that Scots actually played in the British Empire. It occludes any discussion of racisms in the country. Empire is central to the union. TheAct of Union, 1707, opened up English colonial markets to Scottish merchants and made it possible for Scots to play
a role in the construction of the British Empire. But when we think of the British Empire our minds often drift to England rather than to Scotland. Yet Scotland was complicit in the slave trade and had colonies predating the joining of the union. It is significant to note here that slavery or the slave mode of production was central to early capital and racism became its justification. Thus racism has evolved entwined with capitalism over the last three centuries.

There is a level of amnesia that clouds the history of empire. Glasgow was the second city of the empire and, by the end of the Victorian era, Scots firms had attained a controlling position in key sectors of the economy of British India. Rather than sanitizing its past in order to re-imagine a post-union future, perhaps we need to look back at Scotland’s imperial history and connect it to a broader understanding of the British empire and Britain’s colonial past.

This perception that Scotland has less of a problem with racism than other areas of the UK is not borne out by the statistics either. In 2013-14 there were 4,807 racist incidents recorded by police
in Scotland, the equivalent of 92 incidents a week without accounting for the many cases that go unreported. And lest we forget that there has been racist murders here many of which have still not been formally acknowledge as racist – Nuer Mohamed, Hector Smith, Shamsie Din Mohamed, Imran Khan, Sanjit Singh Choker and Sheku Bayoh to name a few. The growth of far right parties and the rise of Islamophobia across Europe and the US has to be challenged and driven back. Scotland is not immune from this.

The book explores the different modalities of racism in Scotland and the ways in which cultural racism has become central to the experiences of particular social groups. It also seeks
to locate the contemporary debates on racialization and racism in their appropriate context in Scottish history. As the late historian E H Carr once put it: ‘There is no more significant pointer to the character of a society than the kind of history it writes or fails to write’. No Problem Here is a welcomed and important starting contribution that will invigorate the debate of what kind of Scotland we live in and what kind of Scotland we want it to be.

Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal.

Black sailors and the battle of George Square

Photo by Soviet Artefacts on Unsplash

To mark Black History Month, my friend and colleague, Tony Adams recalls a forgotten chapter of the events around ‘Red Clydeside’ in 1919. This article was originally published in the Scottish Left Review.

The year, 1919, in Britain represents a high point in working class struggle and one un-matched since in its breadth and scale. Over 34m working days were not worked due to strikes compared to an average of 4.5m for each of the preceding four years. Two thousand soldiers, ordered to embark for France, instead mutinied and formed a Soldiers’ Union. Even the police force struck and demanded the right to unionise. Britain, it is said, was on the brink of a revolution. On 31 January that year a violent confrontation took place in Glasgow between the police and radical striking workers centred in and around the area around George Square. The workers were striking to demand a reduction of the working week from 54 hours to a 40 hour working week.

At a massive union rally in George Square on the day of the protest, the red flag was raised above 60,000 striking shipbuilding and engineering workers. Newspapers of the next day dubbed the demonstration which saw pitched battles between the police and strikers as ‘Black Friday’ or ‘Bloody Friday’. What began as a protest soon became a riot, with fighting across the city continuing throughout the night and 53 people were recorded injured. This dramatic incident and the leaders of the strike have been mythologised under the banner of ‘Red Clydeside’.

Meanwhile, a lesser known harbour race riot on Thursday 23, January 1919 in which black British colonial sailors were branded as unfair economic competitors by the national seamen’s unions and their local delegates, has been overlooked both in the personal and historical accounts of the general strike until more recently. The riot began in the yard of the mercantile marine office in James Watt Street where sailors gathered for their chance to be signed on to a ship. While waiting to see if they would be hired, competing groups of black and white sailors jostled and shouted insults at each other. This baiting descended into a pitched battle which spilled out of the yard onto the street. More than thirty black sailors fled the sailors’ yard pursued by a large crowd of white sailors. White locals joined the crowd which grew to several hundred strong. The rioters used guns, knives, batons and makeshift weapons including stones and bricks picked from the street. On being chased out of the hiring yard, the group of black sailors initially ran towards the nearby Glasgow sailor’s home on the corner of James Watt Street and Broomielaw Street. The white crowd smashed the windows of the sailor’s home and then invaded it. The two or three beat police officers in the harbour area were overwhelmed and an additional force of 50 police officers was called in. The large police force cleared the two set of rioters from the sailors home.

Though the staging of a general strike in Glasgow, its collapse following ‘Bloody Friday’ and the presence of tanks in the city centre the next day were far more eye-catching than the riot in the harbour a week earlier, the two events were explicitly inter-connected through the activities of the members of the leadership of the 40-hours strike movement. Emanuel Shinwell, leader of the Glasgow branch of the Seafarer’s was in addition, president of the Glasgow trades and labour council and chairman of the workers strike committee. Although a moderate, he advocated direct action in the most inflammatory terms in the days leading up to both the harbour riot and the mass protest of the 40-hours campaign. He and other strike leaders, such as William Gallacher, sought to encourage unskilled workers – including seamen – to take part in the sort of strike action that had been the province of the skilled workforce on wartime Clydeside. The two episodes ought to be viewed together as the harbour riot and the George Square demonstration occurred within a few days of each other. This proximity was much more than coincidental especially as the riot in Glasgow seaport, was soon followed by similar riots in South Shields, Salford, London, Hull, Liverpool, Newport, Cardiff and Barry.

It is important to note that the Glasgow harbour riot was the first instance of a spate of rioting focussed upon black residents in British ports which reached its height in June of that year. It was also part of the wider picture of industrial strife which has been simmering below the surface on Clydeside and other heavily industrialised regions throughout the war years and into 1919.

During these riots, crowds of white working class people targeted black workers, their families, black owned businesses and property. One of the chief sources of the violent confrontation in the run- down port areas was the ‘colour’ bar implemented by the sailors’ unions campaigning to keep black, Arab and Asian sailors off British ships in a time of increasing job competition. The imposition of a ‘colour bar’ on black workers at Glasgow and elsewhere around Britain’s seaports to protect white British sailors’ jobs illustrates the disregard for sections of the working class among many of those who considered themselves protectors of the organised workforce. Historically expressions of racist hostility have been tied to questions of employment. Hostility towards groups of fellow workers among trade unionists was nothing new. The opposition of white union members to the employment (in some cases) of cheaper overseas merchant sailors, violently demonstrated at Glasgow harbour, bears comparison to the wartime industrial action on Clydeside which aimed at preventing the ‘dilution’ of skilled with unskilled job losses and the permanent undercutting of ‘engineers’ wages.

The sea port riots of 1919 in which white crowds attacked black workers, their families and communities, have long presented a painful conundrum as they prefigure a century of conflict and harassment of people of colour in Britain. The causes of the riots are located in the interplay between on-going strikes, riots and other collective violence elsewhere in Britain and the Atlantic basin as well as the local context and meanings (including housing shortages and unemployment). In this light, the British riots appear less an isolated eruption ‘proving’ British racism, as they have often been portrayed. They were part of a broader political movement of resistance against post-war betrayals. This made the role of service and recently demobilised men a significant factor in the riots, one which was commented upon in many local press accounts of the violence. It is also clear that the specific grievances of the white sailors were not the only issues in the riots. The sense that the great sacrifices of the war years had been futile was being experienced at a national level as post-war shortages in housing and increased competition in the job market were the first results of mass demobilisation. Wider frustrations were being focused on the black community in Britain as a means of release. That the authorities in part recognised this is often apparent from the light sentences meted out to the white rioters in various centres around the country. However, there is also an element of racial antipathy revealed by the official response to the riots.

The fear of violence in the immediate post-war period became a worldwide phenomenon, and not without reason. The level of global unrest in the late 1918 and 1919 is also worth considering as it provides a wider context in which the race riots in Britain may be discussed. The Bolshevik revolution in Russia in 1918 provided governments worldwide with a spectre of the overthrow of the state in a situation of crisis. The attempted revolts of the Spartakist movement in Berlin, the establishments of soviets in Bavaria, Hungary and Czechoslovakia and the socialist revolt in Austria fuelled the worldwide fear of Bolshevism. It was not merely in the ‘defeated’ nations that unrest occurred for the politicising effect of war service and the strains placed on every day society by the war resulted in riots in the United States, the Caribbean, Africa as well as in Britain. As one of Scotland’s leading expert calls for a permanent fixture to remember the demonstration which took place on 31 January 1919, the black sailors of the Glasgow harbour riots deserve a place to be commemorated too because there is a single working class in Britain by historic right and present participation.

Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal. Jacqueline Jenkinson’s ‘Black 1919 Riots, Racism and Resistance in Imperial Britain’ (Liverpool University Press, 2009) is the best available study of the issues.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/04/13/no-blacks-no-irish-no-dogs-we-like-to-think-that-such-signs-are-a-thing-of-the-bad-old-days-in-housing-law-what-about-no-dss-tenants-some-recent-legal-actions-suggest-that-such/

https://seancrossansscotslaw.com/2019/06/17/is-it-cos-i-is-black/

The American approach

Photo by Claire Anderson on Unsplash

Equal justice under law?

On Monday 15 June, 2020, the US Supreme Court issued a very important ruling (Bostock v Clayton County, Georgia (Case 17-1618)) that there can be no discrimination on the grounds of a person’s sexual orientation or that they have (or are undergoing) gender reassignment. An attempt by an employer to dismiss a gay person or a transgender person will be an example of unlawful discrimination.

Surprise, surprise you might say: what took the Supreme Court so long?

Such discriminatory behaviour, the US Supreme Court has now declared, is a breach of Title VII of the US Civil Rights Act 1964 (which was enacted by Congress as part of President Lyndon B Johnson’s Great Society programme).

And this is where the American approach to the issue of discrimination on the grounds of a person’s sexual orientation differs quite markedly from the UK.

Title VII of the Civil Rights Act 1964 states that it is:

unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.

From a British legal perspective, the word “sex” in Title VII of the American legislation is problematic when applied to discrimination involving a person’s sexual orientation.

Why?

Quite simply, in the UK, we would understand the word “sex” in discrimination law as applying to an individual’s gender whether they are male or female; or identify as being male or female.

A link to the US Supreme Court’s judgement can be found below:

https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf

A link to an article on the BBC website about the judgement can be found below:

US Supreme Court backs protection for LGBT workers

Readers of this blog might not regard the US Supreme Court’s decision in Bostock v Clayton County, Georgia as in any way unusual. After all, in the United Kingdom and across the EU 27 member states, laws have been in place for a considerable period prohibiting unlawful discrimination on the grounds of sexual orientation.

Although the UK has now left the EU, the legislation protecting the LGBTI communities remains very much in place – by way of the Equality Act 2010 and other legislative instruments such as Article 19 of the Treaty on the Functioning of the European Union (primary legislation) and numerous Regulations and Directives (secondary legislation). The provisions in the Equality Act are, of course, an example of Westminster legislation and will remain hardwired into our legal system – for the time being at least.

The continuing status of European Treaty Articles, Regulations and Directives (in relation to the laws of the UK) will, of course, be up for debate when the Brexit transition period ends, as expected, on 31 December 20020.

The Equality Act 2010

Section 12 of the Equality Act 2010 addresses the issue of a person’s sexual orientation. This is a protected characteristic under the Act and means a person’s sexual orientation towards:

  • persons of the same sex
  • persons of the opposite sex
  • persons of either sex.

Sexual orientation discrimination: the historical perspective

Before 1 December 2003, in the United Kingdom, it was not unlawful to discriminate against an employee or potential employee by reason of that person’s sexual orientation. The situation changed dramatically with the introduction of the Employment Equality (Sexual Orientation) Regulations 2003. The relevant law now being contained in the Equality Act 2010, which prohibits less favourable treatment on the grounds of a person’s sexual orientation generally and such protection is no longer confined to the field of employment.

It should be noted, of course, that the Employment Equality Regulations were primarily brought into force to introduce protection for gay, lesbian and bi-sexual people. If, on the other hand, you were heterosexual, you were very unlikely to face discrimination in the work place due to your sexual orientation. 

The primer for this change to the law in 2003 was the European Union’s Employment Equality Directive (as a result of the Treaty of Amsterdam 1999) which meant that the UK, as a member state, had to introduce legislation in order to guarantee that people who had suffered less favourable treatment in relation to employment had a form of legal redress. The Employment Equality Regulations 2003 (and now the Equality Act) implemented this duty on the part of the UK.

Employment Equality Directive was limited in its scope because it applied (unlike the more expansive Racial Equality Directive) to just two sectors: employment and vocational training.

Sexual orientation not sex

It is perhaps now instructive to examine the failure of UK laws to provide protection to individuals who suffered sexual orientation discrimination prior to the Employment Equality Regulations coming into force.

In Macdonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School [2003] UKHL 34, the House of Lords held that discrimination on the grounds of a person’s sexual orientation was not covered by existing UK equality laws (specifically the area of sex or gender discrimination then contained in the Sex Discrimination Act 1975).

Macdonald was dismissed from the Royal Air Force because he was homosexual or gay. Pearce, a teacher, had suffered an ongoing campaign of harassment while working at Mayfield School because she was a lesbian. Both Macdonald and Pearce claimed that the treatment that they had suffered was an example of direct sex discrimination. 

Both claims failed because the treatment suffered by both individuals was an example of direct discrimination on the grounds of their sexual orientation – not because of their sex or gender. At the time of this appeal to the House of Lords, discrimination in employment on the grounds of a person’s sexual orientation was not prohibited by UK equality laws.

In its judgement, the House of Lords drew attention to the ironic fact that a new equality law prohibiting sexual orientation discrimination would soon be introduced, but this admittedly would be too late for Macdonald and Pearce! Small comfort indeed!

Had the cases occurred today, the employers would be liable for direct discrimination on grounds of sexual orientation in terms of Section 12 of the Equality Act 2010.

The perspective of the Court of Justice

Before the European Union’s Employment Equality Directive, the Court of Justice had been reluctant to lay the basis for greater legal protection in relation to a person’s sexual orientation.

In Case C-249/96 Grant v South West Trains Limited [1998] ECR I-621, Lisa Grant had argued that the failure by her employer to extend a concessionary ttavel scheme (worth £1,000 per year) to Gillian Percey, her same sex partner, with whom she had been in a stable relationship for more than 2 years, was an example of unlawful, less favourable treatment. The employer permitted heterosexual spouses (including common law spouses of more than 2 years standing) to enjoy the benefit of the travel scheme. Grant’s predecessor in the post had been male and his female partner had benefited from the travel scheme.

Grant chose her male predecessor as her comparator as part of an equal pay claim. It is important to appreciate that Grant was bringing her claim as a sex or gender discrimination legal action. Although Advocate General Elmer was broadly supportive of the couple’s claim that they had suffered discrimination under what is now Article 157 of the Treaty on the Functioning of the European Union and the Equal Treatment Directive, the Court of Justice decided not to follow this Opinion.

The Court stated that two men in a same sex relationship would have been treated in exactly the same way as Grant and Percey by the employer. South West Trains did not wish to extend concessionary travel to same sex partners of employees and, currently, there was nothing unlawful about this policy as neither UK or EU equality laws prevented discrimination by reason of a person’s sexual orientation. At the time that this case was decided, it should be appreciated that same sex relationships in the UK were not legally recognised in terms of civil partnership or marriage – such legal recognition was still some way away.

To come back full circle, the European Union would, of course, later redress the situation with the Employment Equality Directive which led to the introduction of the Employment Equality (Sexual Orientation) Regulations 2003 into UK law. Had these Regulations been in force when Lisa Grant commenced her legal action against South West Trains, these would have given her and Gillian Percey significant legal protection from the discriminatory action of her employer. Admittedly, this was scant consolation for them and thousands of other same sex couples who experienced less favourable treatment in employment.

The European Convention on Human Rights

The provisions of the Convention have been implemented into Scots law via the Human Rights Act 1998 and the Scotland Act 1998 which means that an individual will enjoy substantial legal protection in relation to his or her sexual orientation. Article 8 of the Convention places a duty on a public authority to have respect for a person’s private life. Fuirthermore, Article 14 of the Convention confers a general right on individuals not to be subjected to discrimionation. Employers who are defined as a public authority will have to ensure that they comply with these provisions. Private employers will also have to be aware of these provisions because there is nothing to stop an employee bringing a discrimination claim against the UK Government if some loophole exists which permits the employer to behave less favourably towards them on the grounds of their sexual orientation.

Interestingly, in Macdonald v Advocate General [2003] (discussed above), the employee did attempt to argue that his dismissal by the Royal Air Force, by reason of his sexual orientation, was a breach of the European Convention, but this argument failed because the Convention had not yet been implemented by the Westminster Parliament.

Today, of course, Macdonald would have a very strong claim against his employer for the treatment that he had suffered. Although the war may ultimately have been won, this was a battle that the unfortunate Macdonald would lose.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/05/25/the-love-that-dared-not-speak-its-name/

https://seancrossansscotslaw.com/2020/02/02/the-only-gay-in-the-village/

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 16 June 2020

When Black lives didn’t matter …

The Slave Ship (1840) by JMW Turner

When Black lives didn’t matter … that much – except perhaps merely as a commodity – is something that British society is having to confront in June 2020. Humans could be property to be bought and sold – quite legally.

Statutes of historical personages have been torn down or defaced in this country because of the death of George Floyd, an African American, in Minneapolis, USA. Unless you have been living in a vacuum, Mr Floyd died at the hands of a Minneapolis Police Officer on 25 May 2020.

Black Lives Matter

The protests that have kicked off around the world in the wake of the death of Mr Floyd have stirred memories of Britain’s murky past in the matter of race relations. It is not something at which this country can take pride.

Some readers may recognise the picture by JMW Turner at the top of this Blog, but if you don’t it relates to a particularly egregious and shocking incident in British legal history – but more about that later.

I’m thinking, in particular, about Britain’s role in the Trans-Atlantic Slave Trade. It may come as a surprise to many Britons that this country was an active participant in the mass enslavement and trafficking of our fellow human beings to the plantations, factories, mills and mines of the New World or the Americas.

It seems almost unthinkable today that such practices were allowed to flourish when we have strong laws in place prohibiting slavery (e.g. Article 4 of the European Convention on Human Rights as implemented by the Scotland and Human Rights Acts 1998).

Sir John Hawkins, Elizabethan Merchant Adventurer (1532-96)

Sir John Hawkins, the National Maritime Museum, London

As far back as 1562, Sir John Hawkins, cousin of the more famous Sir Francis Drake, had sailed to West Africa on trading voyage when he captured a Portuguese slave ship. After securing his human cargo, Hawkins then set sail for the Caribbean – then part of the Spanish Empire – to find buyers for his merchandise. Although England and Spain were in an effective state of war, the Spanish colonists were more than happy to do business with Hawkins.

And so began, the lucrative trade in human beings from the British perspective: Hawkins would carry out another two trading voyages to the Spanish Empire. On his third voyage (1567-69), he nearly came to grief when he tangled with a Spanish naval squadron at the Mexican harbour of San Juan de Ulúa (near Vera Cruz), narrowly escaping death. Many of his men were not so lucky, but that’s another story.

Although Hawkins was responsible for the enslavement and trafficking of hundreds of Africans – and by the way, the English Crown also got its cut from these enterprises – his activities were really minuscule when compared to what would come later.

An image of John Hawkins’ coat of arms (complete with the image of an enslaved African or a Moor- the name generally given to inhabitants of North Africa) can be seen below:

The coat of arms of Sir John Hawkins, part of whose wealth was derived from slave trading activities

The Asiento

British participation in the Trans-Atlantic Slave Trade would really hit its stride as a result of the Treaty of Utrecht 1713-1715 which ended the War of the Spanish Succession. Under the terms of the Treaty (Part X), the British gained possession of the naval fortress of Gibraltar and the Island of Menorca. More significantly and, from a purely profitable point of view, the British also took control of the Asiento for an initial period of 30 years.

The Asiento was the hugely lucrative contract or monopoly to supply Spain’s American Empire with African Slaves. Queen Anne (1702-14), the last Stewart monarch of the British and Irish Isles would hold a 22.5% stake in the company which administered the Asiento according to Hugh Thomas in his magisterial The Slave Trade: History of the Atlantic Slave Trade, 1440-1870 (Simon Schuster: 1997; First edition).

For nearly the next century, British vessels would carry millions of enslaved African (men, women and children) via the horrific Middle Passage to destinations in the Americas to be brutalised and exploited by their White masters.

By this time, of course, Scotland and England had entered into political Union in 1707 and this meant that Scottish merchants and financiers could take full advantage of what became known as the Triangular Trade. Ships would sail from British ports, laden with trade goods, heading for the coast of West Africa; they would pick up their human cargoes and take the Middle Passage to the Americas where the slaves were sold; then the return voyage could begin with the ships laden with tobacco, rum, cotton etc for sale in Britain.

Image available at: https://www.historyonthenet.com/black-peoples-of-america-the-triangular-trade

Altogether it was a very profitable enterprise and vast wealth flowed into Britain.

Needless to say, the conditions which the slaves endured was horrific, with them being crammed into the holds of the ships for up to six weeks. Many slaves would not survive the passage, succumbing to disease and infection.

A depiction of conditions on a slave ship can be seen below:

A depiction of the horrifically overcrowded conditions endured by African Slaves on the slave ship, Brookes (1781)

The Zong Massacre

This is where JMW Turner’s picture (The Slave Ship) heaves into view. It is the depiction of a shocking event which involved the crew of a British ship called the Zong. In 1781, the Zong, which belonged to a Liverpool merchant syndicate, was carrying slaves from West Africa to the Americas. The lives of the slaves were insured, but not in the way that we think of modern life insurance: they were cargo or excess baggage; pure and simple. Slaves were goods or beasts of burden.

A depiction of the Massacre on the Zong

The Captain, Luke Collingwood, or another crew member had made what would turn out to be a fatal error (for some) in their navigational calculations and the Zong was way off course from Jamaica. With supplies of drinking water becoming evermore scarce, a fateful decision was made: a large number of slaves (over 130) would be thrown overboard in order to conserve supplies. Murder? Not quite … jettisoning excess baggage/livestock? This was an acceptable practice on slave ships and insurance had been developed to cover such eventualities.

The owners of the Zong would later attempt to recoup their losses by claiming under their policy of insurance. In the infamous case of Gregson v Gilbert [1783] English Reports 83, the syndicate would be forced to take legal action against the insurers who were refusing to pay compensation. Before anyone misunderstands matters here, this was purely a commercial question of liability for lost cargo, not human lives, certainly not a question of human rights.

At first instance, the court found for the syndicate owners and the insurers were ordered to pay compensation to cover the losses. On appeal, however, the syndicate would ultimately lose the case as Lord Justice Mansfield and his fellow judges would rule that the Captain and the crew had been negligent.

Lord Mansfield had been the judge in an earlier case – Somerset v Stewart (1772) 98 ER 499 – in which the issue of the freedom of an enslaved African, James Somerset was at stake. For abolitionists, this case represented a victory because Somerset was allowed to go free, but whether it represented a general proposition that English common law did not permit slavery within the territory of England has always been the subject of some debate.

Hardly a resounding victory for human rights, but this case would serve as a rallying call to arms for British anti-slavery activists, like the ex-slave, Olaudah Equiano (born in modern day Nigeria) and Granville Sharp.

Sharp later attempted to have crew members of the Zong charged with murder, but the Solicitor General for England, John Lee made a very telling statement:

What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder… The case is the same as if wood had been thrown overboard.

Other losses


A rebellion aboard a slave ship. Available at: https://www.abolitionseminar.org/slave-resistance-and-abolitionism/

Insurers also covered losses (within limits) incurred by slavers who had to kill rebellious slaves while in transit. I well remember the late Professor Robert Burgess regaling the class with the tale of a failed rebellion where the owners of the ‘cargo’ successfully claimed from the insurers the value of the slaves who had been killed by their captors. The sting in the tale was that compensation was not payable for the slaves who had committed suicide following the failure of the rebellion. The policy did not cover such eventualities (see Jones v Schmoll (1785) 1 Term Rep 130n). A human tragedy reduced to an interpretation of the wording in an insurance document.

You can read more about insurance and slavery by accessing the link below:

https://hull-repository.worktribe.com/OutputFile/1152979

From active slavers to ardent abolitionists

From 1788 until 1833, the Westminster Parliament would pass legislation chipping away at the edifice of slavery in the British Empire. The practice of enslaving one’s fellow human beings would not be achieved overnight, but the road to eventual abolition would be under construction via the following statutes:

  • Regulated Slave Trade Act 1788 (or Dolben’s Act)
  • Abolition of the Slave Trade Act 1807
  • Slavery Abolition Act 1833

The Act of 1788 did not abolish the practice of slavery, but it laid down limits on the numbers of slaves that could be carried in accordance with the vessel’s tonnage. It was the first British Act of Parliament which attempted to curtail some of the worst practices of the Slave Trade.

More significantly, in 1807, the trade in slaves in the British Empire was abolished. Britain was not the first European country to do this – the Kingdom of Denmark had done so in 1792, although this law did not come into force until 1803. It is important to note that neither the Danes nor the British prohibited the ownership of slaves – this was still a perfectly legal practice.

Eventually, in 1833, the Westminster Parliament passed the law which would abolish slavery – eventually – as a legal practice in the territories of the British Empire. I say eventually because the institution of slavery would not be abolished at the stroke of the Royal Assent. Compensation for loss of property rights would have to be paid to slave owners (great and small) and there would be a transitional period (from 1838 until 1840) in which the slaves would migrate to their new legal status of freed men and women.

In total, it is estimated that the British Government established a fund of some £20 million (£16/17 billion in today’s values) which would be used to compensate soon to be former slave owners.

Ironically, the British would become ardent opponents of slavery throughout the world and they would use their considerable global influence to eradicate the trade and the institution whenever they could.

That is perhaps the problem which has contributed to a sense of collective amnesia amongst the British. Yes, considerable pride is taken when it comes to the abolition of slavery, but memories are extremely hazy when it comes to activities of British mercantile interests which made fortunes from the opportunities afforded by The Asiento.

For more information about the background to the abolition of slavery in the British Empire, please find a link below to an article in The Guardian:

https://www.theguardian.com/world/2015/jul/12/british-history-slavery-buried-scale-revealed

An entry showing compensation of nearly £40,000 in today’s values paid to a slave owner (£329 and change in 1830s’ money) can be seen below:

Compensation paid to Catherine Sweeney or Sweeny, who owned 22 slaves on the Caribbean Island of Montserrat

You can search the database of the records of the Slave Compensation Scheme managed by University College London by using the link below:

https://www.ucl.ac.uk/lbs/

Conclusion

As the events of the last week have shown, reminders of Britain’s links to the Trans-Atlantic Slave Trade are everywhere: Edward Colston’s statute in Bristol; Henry Dundas’ statute in Edinburgh (who delayed the abolition of slavery by some 15 years); and Robert Milligan’s statute in East India Docks, London. Furthermore, British Street names reflect connections with prominent slave traders and their interests in the West Indies: Cochrane Street and Jamaica Street in Glasgow. The legacy of slavery is all around us, but for so long we have been wilfully blind or forgetful about this.

In 2020, it is difficult for us to appreciate how pervasive the institution of slavery was. It had been around since the earliest human communities and it still exists. Great scientists such as Sir Isaac Newton (1643-1727) invested heavily (and ultimately unwisely) in the infamous South Sea Company which traded in slaves (amongst other goods). From the British Royal family all the way down to ordinary individuals, investing in slavery could be a profitable financial activity.

Anti-Slavery International estimates that, today, there are more people (some 40 million individuals) living in conditions of modern slavery or unfree labour than there were when the Slavery Abolition Act 1833 was passed by Parliament.

If anything positive comes from the death of George Floyd, hopefully it will make us more aware of the fact that there was a time when Britain was not a beacon of civilised values and although Britannia undoubtedly ruled the waves, but many people could be slaves.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/04/13/no-blacks-no-irish-no-dogs-we-like-to-think-that-such-signs-are-a-thing-of-the-bad-old-days-in-housing-law-what-about-no-dss-tenants-some-recent-legal-actions-suggest-that-such/

https://seancrossansscotslaw.com/2019/06/17/is-it-cos-i-is-black/

Copyright Seán J Crossan, 10 June 2020

Face the consequences!

Photo by Tim Bennett on Unsplash

By Louise Aitken, Siobhan Donaghy, Kieran Flynn and Elisha Masini (Editor: SJ Crossan)

Introduction

Privacy is a human right and both the Scotland Act 1998 and the Human Rights Act 1998, implemented provisions of the European Convention on Human Rights (Article 8) directly into national. The employment contract, consequently, is not in any way exempt from human rights issues (see the judgement of the European Court of Human Rights in Bărbulescu v Romania 5 September 2017 (Application no. 61496/08). The European Union (EU) has also had a major influence on the development of privacy laws e.g. General Data Protection Regulations.

Privacy has become a major issue in recent years, particularly due to the rise of social media use. The increasing use of IT systems and the internet by organisations and their employees are key factors in the expansion of laws regarding privacy. In Bărbulescu, the employer had violated the employee’s rights to privacy in terms of Article 8 of the European Convention in the way that it had monitored the company’s email system. Privacy in the work-place is a major issue for both employers and employees. Some of the most important areas of law that govern privacy are to be found in the areas of human rights, data protection, and freedom of information.

It is very important to establish from the outset that employees do not have an absolute right to privacy and there may be situations within and outwith the work-place where the employer has a legitimate interest in the activities of their employees – especially if such behaviour could amount to gross misconduct.

Gross misconduct

Gross misconduct relates to serious behaviour on the part of the employee that is deemed so bad that it destroys any relationship or trust between the employer and the employee. Gross misconduct warrants instant dismissal without any notice or pay.

Section 94 of the Employments Rights Act 1996 states that an employee has the right not to be unfairly dismissed.

Section 95 of the Employment Rights Act 1996 states that an employment contract can be terminated by means of the company through purpose of the employee’s conduct. Such a dismissal or termination of contract should be viewed as a fair dismissal (Section 98: ERA 1996).

Acts or omissions by the employee which would be classified as misconduct, such as theft, alcohol or drug use, poor discipline, continually missing work without justification or poor performance are all potential exceptions to this right.

Sexting

Matt Simpson former officer in the Cumbria police force is one of many who have been caught out due to things such as inappropriate text messages. In 2020, PC Simpson was dismissed from the force after he was found to be having a secret, sexual relationship while on duty. It first came to light after the new partner of the female, with whom Simpson was involved, found text messages that had been sent to her. The new partner of Simpson’s lover then went to the police authorities with this information to make a formal complaint.

A hearing was held to establish if PC Simpson was guilty of any wrongdoing. The panel found that this was a dereliction of Simpson’s duties and he was guilty of gross misconduct – not only due to having this relationship during the time when he was meant to be working but also due to him using confidential police system to uncover information about the women purely because he was “curious”. As well as this Mr Simpson also visited the female around 20 times when on shift and had vital police equipment with him while visiting such as a body camera and a taser device. The fact that this whole affair had come to light via Simpson’s private text messages was neither here nor there: this was an aspect of Simpson’s private life in which his employers had a legitimate interest and he had been carrying out his romantic activities during his employment.

A link to the story on the BBC website can be found below:

https://www.bbc.co.uk/news/uk-england-cumbria-51136711

In PC Simpson’s case, he clearly performed his duties inadequately and was guilty of very poor discipline. He was aware of the consequences of his actions. By involving himself with the female, he was making himself unavailable at times such as an emergency. Dereliction of duty is defined as the failure to fulfil one’s obligations. Here, PC Simpson clearly failed to do his job in a proper and professional manner and he could have been potentially negligent should an emergency have risen.

A further example of an employee committing acts of misconduct occurred in Adesokan v Sainsburys Supermarket Ltd [2017] EWCA Civ 22. Mr Adesokan was hired by Sainsbury’s as a Regional Operation Manager when he was in charge of ‘Talkback Procedure’, a key company policy which involved all members of staff giving information in confidence about their working environment and relationships with other colleagues. Mr Adesokan discovered that his HR manager had tried to manipulate the Talkback scores within his region by sending an email to five store managers telling them to seek feedback only from their most enthusiastic colleagues. Mr Adesokan asked the HR manager to “clarify what he meant with the store managers”, but the HR manager never responded. Mr Adesokan failed to follow this matter up and he was later dismissed by his employer for not taking action to confront the HR manager’s deliberate “manipulation” of the survey data.

A subsequent investigation into the matter led to Mr Adesokan’s eventual summary dismissal for “gross negligence on his part which is equivalent to gross misconduct”. Mr Adesokan brought a claim for breach of contract with regard to his notice period. The English High Court found that although he was not dishonest, his failure to take active steps to remedy the situation had damaged Sainsbury’s trust and confidence in him, which was sufficient to warrant the sanction imposed. The English Court of Appeal subsequently affirmed the decision of the High Court.

The Adekosan case was remarkably similar to that of PC Simpson where no other option was available to the employer as there was a complete loss of trust.

Activities outwith working hours

What individuals do with their own time is largely their choice (as long as they stay on the right side of the law). It is exceedingly difficult, however, for many people to do much these days without using social media or a mobile phone. Activities which used to be very much private are, consequently, at a much greater risk of public exposure in the virtual world in which we find ourselves living in 2020.

Employees can carry out many activities in private that may get them in trouble with their employers and have serious consequences for them. This might include, for instance, acts of gross misconduct committed in private which result in reputational damage to the employer. Consequently, the employer may have no alternative but to contemplate dismissal of the employee.

There is a lot of case law with regard to employees being dismissed from situations that have happened outside the workplace, an example would be the well-known case of X v Y [2004] EWCA Civ 662.

The facts of the case are as follows:

A charity employee who worked with young offenders committed an indecent act with another male in a public toilet at a motorway service station. He was put on the Sex Offenders’ Register as a result of receiving a police caution. The worker had not been straightforward with the Police when they asked questions about his job and, compounding this, he failed to inform his employer about the situation. Later, his employer decided to terminate his contract and the dismissal was once deemed to be fair. The reputational harm which the employer suffered due to the fact of the employee’s failure to be completely honest about what had happened was an enormous element of the decision to dismiss.

The English Court of Appeal was firmly of the view that the employee’S argument that he had a right to privacy (on grounds of his sexual orientation) in terms of Article 8 of the European Convention on Human Rights was not applicable here as the indecent act was not of a personal nature due to the fact it had been carried out in a public toilet.

Doctor Beck

In some cases, however, it may be problematic to dismiss the ‘offending’ employee who may be involved in activities which come under the protected characteristics of the Equality Act 2010 e.g. philosophical beliefs or freedom of speech laws in terms of the European Convention on Human Rights.

One example of this was reported by The Independent regarding Dr Gunnar Beck, a German national and a candidate for the Alternative for Germany (AfD), a far right political party.

Dr Beck was employed at School of Oriental and African Studies (SOAS), (part of the University of London) as a law lecturer. A number of his students and colleagues were enraged after discovering that he was an AfD candidate for a German seat in the European Parliamentary Elections in 2019.

Students and fellow lecturers organised protests arguing that Dr Beck should be fired from his position and for his employer to justify its part “in facilitating his far-right politics”. His colleagues from the School of Law stated that they vehemently oppose the AfD and its policies and wished to dissociate themselves completely from the people who support and advocate the Party.

The members of AfD are well-known for making provocative remarks concerning the actions taken by the Nazis. They targeted climate change activist, Greta Thunberg as part of their attempts to deny climate change.

Employees at the University of London went on to say that they were making their views public since they “recognise the importance of not being complicit in the normalisation of reactionary, right-wing populism.” A declaration by the students’ union at the university asked why Beck chose to work at a university “who hold and support so many of the identities he wants to see diminished”.

The Acting General Secretary of the University and College Union, Paul Cottrell stated that:

The AfD is an extreme right-wing, racist, anti-immigration party that has no place on UK campuses. We are shocked that a member of academic staff from SOAS could be involved with a party like this which stands for policies utterly incompatible with the values of diversity, tolerance and internationalism at the very heart of SOAS as an institution.

Dr Beck informed The Independent that his reason for supporting the AfD was because “there is no other Eurosceptic conservative party in Germany”.

He also went on to say that the AfD are “not a Nazi nor a fascist party.” Dr Beck stated that he was an advocate for freedom of speech and would defend anyone’s rights to it and any claims of him being a white supremacist, Islamophobe or fascist were outrageous.

Subsequently, Dr Beck was elected as 1 of 10 German MEPs from the AfD Party, but he was not dismissed from his position at the university.

A representative of SOAS stated:

We find the policies of the AfD on a range of matters to be abhorrent. They conflict with the fundamental values we hold as an institution. We recognise the anxiety caused to staff and students as a result of this situation.”

However, they added that: 

As an academic institution, we are committed to the rights of academic freedom of speech within the law, despite the painful choices to which it gives rise. We encourage members of our community to tackle these issues through robust debate.

This story regarding Dr Beck’s private affairs is an excellent illustration of employers not being able to fire an employee for acts committed in private due to protected characteristics (i.e. political beliefs) of the Equality Act 2010.

Both Dr Beck and the University of London have undoubtedly suffered reputational damage. Beck has suffered reputational damage in the eyes of his fellow lecturers and students because he is a member of AfD; and the university has suffered reputational damage for employing him in the first instance and subsequently for not dismissing him after the revelation about his political activities came to light.

That said, the University of London was in something of a difficult position because Dr Beck would probably have launched a legal challenge in terms of the Equality Act 2010. He would doubtless have protested that his political activities were a protected characteristic (philosophical beliefs). It would then have been up to an Employment Tribunal and, potentially, the higher courts to determine this issue. There was also the possibility that the university would have been accused of suppressing the right to freedom of speech.

A link to the story in The Independent can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.180519/data/8919156/index.html

Using social media outside work

As previously discussed, reputational damage is a big concern for organisations. Employers have also had valid fears about risks to their’ reputation as a result of work place misconduct that becomes widely publicised in e.g. the media. These fears have been increased with the surge in social media use today.

Employees are now far more likely to be found behaving in questionable ways or making offensive remarks online, which can attract a large audience or readership very quickly. Social media platforms, such as Facebook, Instagram, Twitter and WhatsApp (where responses can be instant) can represent something of a nightmare for an employer. It is important to remember that social media, if abused, can have a significant impact on relationships within the work place and could result in serious legal consequences.

Social media misuse by employees has become a frequent and complicated issue for employers to address. Although social media can be an extremely valuable resource for organisations, it can also pose a serious challenge to both employees and employers. Inappropriate social media misuse e.g. racial or sexual harassment could lead to employers being held vicariously liable for their workers’ misbehaviour.

When an employee misuses social media, firms need to know how to respond and handle it. Therefore, it is vital for companies to devise a clearly defined social media policy by which employees abide. It is important that employers notify workers about the nature of these policies and the potential ramifications of any violations.

So, when employers want to act against employees who make offensive remarks, such disciplinary action should come as no surprise. Such remarks can cause embarrassment, at best. At worst can hurt a firm’s reputation and lose them customers. Even if the remarks were posted years ago, they can still come back to haunt the employer and the employee.

The difficulty of dealing with social media use by employees for organisations can be seen in the case below.

Creighton v Together Housing Association Ltd ET/2400978/2016 Mr Creighton was dismissed for tweets which were made three years earlier. He had made negative remarks about colleagues and his boss on Twitter. The claim that Mr Creighton posted offensive remarks on Twitter resulted in his dismissal for gross misconduct even though he had worked with the organisation for 30 years.

Held: The Tribunal further clarified that the disciplinary policy of THA included “defaming the company or undermining its image by the use of social media” as an example of gross misconduct. The appeal panel rejected Mr Creighton’s appeal to the decision, arguing that he was aware or should have been fairly aware of the implications of his conduct as the disciplinary policy of the company. 

There are more and more cases of social media defamation – which emphasises a need for extremely specific social media rules and regulations in the terms and conditions of an employer. 

Employees are going to be very foolish if they assume it’s a credible argument to claim that social media comments happened outside working hours, were believed to be posted on an account that is supposed to be “secret” or posted years earlier, which Mr Creighton found out.

The importance of having a social media policy

As previously mentioned, establishing a solid social media policy is vital for an organisation. From the workers’ viewpoint, it is important that they are aware of the existence of such a policy, understand its substance and also recognise any potential consequences for failing to follow its rules.

Employers are also urged to review and update social media policies on a routine basis. New platforms and technology continue to be developed at a quick pace today and to maintain the knowledge of social media is simply made part of induction and training methods.

It is extremely necessary for an employer to make clear to its employees the kind of conduct which may justify dismissal. Usually, this may be done via a section in the employee handbook which addresses the consequences of misconduct in the workplace.

Additionally, an acceptable induction technique for new personnel may centre on the kinds of behaviour which the corporation would not condone. Regular refresher training for current and long-term personnel may be beneficial and, in large organisations, this would be a necessary function of the Human Resources Department.

Panera Bread

There was a huge news outbreak when a Panera Bread employee leaked a video of a man laughing hysterically that’s racked up almost 1 million likes (now that’s a lot), as a plastic packet of frozen macaroni and cheese is dropped into a boiler, burst open and then poured into a bowl geared up to serve to customers. The lady who posted the clip offers a thumbs-up in the hat that marks her as a worker of Panera Bread.

A link to the video can be found below:

https://www.youtube.com/watch?v=9yGSQ1BULWg

The clip introduced a wave of complaints in October 2019 from dissatisfied clients of a chain recognized for “fast casual” eating commonly perceived as a step in quality above other quickly made or fast food meals. Commenters stated they expected more than warmed-from-frozen dishes, or — as one critic put it — “glorified hospital food.”

Unfortunately for the employee she later posted on Twitter stating, ‘lol I lost my job for this’. The employer was clearly very unhappy at the negative media attention and being ‘outed’ for lying to its customers and providing them with low quality food.

Conclusion

In conclusion, employees should be incredibly careful of what they are doing or how they areusing social media during or outwith their working hours as their employers will have the right to investigate any implications arising from employees’ misconduct.

One of most likely repercussions arising from employees’ misconduct in privacy cases, is that the business and those involved will experience reputational damage. Whether this reputational damage is a result of offensive language in a tweet, forms of bullying in a Whatsapp groupchat or even now a TikTok exposing behind the scene practices of a company – there can be significant consequences. The preponderance of evidence shows that how employees conduct themselves in what they may consider private, has a major effect on workplace relations.

References

Adesokan v Sainsburys Supermarket Ltd [2017] EWCA Civ 22

Bărbulescu v Romania 5 September 2017 (Application no. 61496/08)

Chartered Institute of Personnel and Development (CIPD), (2020) ‘Employment law’ Available at: https://www.cipd.co.uk/knowledge/fundamentals/emp-law [Accessed: 28 April 2020]

Creighton v Together Housing Association Ltd ET/2400978/2016

Crossan, S. J. (2019a) ‘It happened outside work … (or it’s my private life!)’ Available at: https://seancrossansscotslaw.com/2019/02/07/it-happened-outside-work-or-its-my-private-life/ [Accessed: 28 April 2020]

Crossan, S. J. (2019b) ‘I’m a political activist: don’t sack me!’ Available at: https://seancrossansscotslaw.com/2019/06/05/im-a-political-activist-dont-sack-me/[Accessed: 29 April 2020]

Group, E., 2004. X v Y, CA, 28 May 2004, EWCA Civ 662 – Personnel Today. [online] Personnel Today. Available at: https://www.personneltoday.com/hr/x-v-y-ca-28-may-2004-ewca-civ-662/ [Accessed 29 April 2020].

Knowles, H., 2019. [online] Available at: https://www.washingtonpost.com/food/2019/10/14/woman-says-she-was-fired-over-tiktok-video-exposing-panera-breads-use-frozen-mac-cheese/ [Accessed 29 April 2020].

Legislation.gov.uk. 2020. Employment Rights Act 1996. [online] Available at: http://www.legislation.gov.uk/ukpga/1996/18/section/95 [Accessed 29 April 2020].

startups, (2019) ‘Employee privacy and employee confidentiality: Know the laws’ Available at: https://startups.co.uk/employee-privacy/ [Accessed: 28 April 2020]

Sterling Law, (2018) ‘Privacy in the Workplace’ Available at: https://sterling-law.co.uk/en/privacy-workplace/ [Accessed: 28 April 2020]

Team Employment, 2017. Employment Law Case Update: Creighton V Together Housing Association Ltd. [online] Warner Goodman. Available at: https://www.warnergoodman.co.uk/site/blog/news/employment-law-case-update-creighton-v-together-housing-associat [Accessed 28 April 2020].

The Independent, (2019) ‘Campus outcry as teacher stands for German far-right party in European elections’ Available at: https://edition.independent.co.uk/editions/uk.co.independent.issue.180519/data/8919156/index.html [Accessed: 28 April 2020]

X v Y [2004] EWCA Civ 662

Copyright Louise Aitken, Siobhan Donaghy, Kieran Flynn and Elisha Masini, 28 April 2020

The impact of UK Law on sport

By Stephanie Crainey, Ross Codona and Briege Elder (Editor: SJ Crossan)

Introduction

Sport is often viewed as a special entity whereby the law and legal systems do not directly interfere with its rules (Laver, 2020). Therefore, the rules under which a particular sport is played are not an area where the legal system will usually interfere.

The government in the United Kingdom has adopted this non-interventionist approach to sport, meaning there is no general law for sport. Instead regulation is left to the National Governing Bodies (NBGs) (Bennett, 2019).

However, with the turn of a new decade and the economic crash caused by the COVID-19 pandemic, some major issues in sports law have arisen, including whether an athlete is an employee or worker, the terms and conditions governing athletes and their use of social media platforms. Can these issues possibly be addressed, never mind resolved?

Is an Athlete an employee or a worker?

Above British cyclist, Jess Varnish (right) who is currently involved in legal action against British Cycling and UK Sport over her employment status

The question of an individual’s employment status is always up for debate no matter which profession we are discussing. The focus of this question, in recent times, is mainly focused around the gig economy. This type of work might involve individuals providing a service e.g taxi driver (Uber) or food delivery (Nicholson, 2019).

However, due to the nature of the work (short-term and very insecure), gig economy workers are not usually granted the same rights and protection as employees under UK employment law.

Attempts have now been made to address this situation: in 2017, Matthew Taylor, Chief Executive of the Royal Society of Arts and former Downing Street adviser, was commissioned by the UK Government to conduct an independent review on modern working practices; and in the US State of California, Assembly Bill 5 was passed into law in 2020 giving gig economy workers employment status. The Taylor Review looked at the growth of the UK gig economy and considered its implications for worker rights and responsibilities (Nicholson, 2019). Despite the widespread attention that the Californian Assembly Bill 5 and the Taylor report both received, there is still not sufficient clarity surrounding the status of workers who provide services in the gig economy.

In 2018 the issue of employment status and sport received a lot of media attention when former Great Britain cyclist, Jessica Varnish argued that she ‘should be considered an employee of British Cycling or of the funding agency, UK Sport.’(McGowan, 2019). The world silver medallist set out to prove she was, in fact, an employee in order to enable her to sue British Cycling and UK Sport for both wrongful dismissal and sexual discrimination, after she was dropped by team GB before the 2016 Olympics. Shane Sutton, former British Cycling director, was found to have used sexist language toward Varnish, although he denied these claims. Sutton later left his post with British Cycling.

Unfortunately, for Varnish, she lost her claim for wrongful dismissal at the Employment Tribunal in early 2019. Put simply, the Tribunal held that she was not an employee of either British Cycling or UK Sport and, therefore, she was not entitled to bring such a claim. Varnish has now appealed to the Employment Appeal Tribunal.

The appeal hearing could either overturn the decision of the Tribunal or order a new hearing to take place. Varnish stated:

“I want to give others the opportunity to hold to account employees of governing bodies, who they interact with on a daily basis, and have significant control over their careers and opportunities.”

She added:

I continue to think it’s unfair that athletes still have no structured means to do this, and I hope this appeal will be the first step towards affecting change, and bring about a fairer, more modern and high performance system in the UK where athlete welfare is not just a sound bite, but something that we all believe in.” (McGowan, 2019).

In response to her statement, a British Cycling spokesmen added:

We very much regret that Jess has been advised to pursue the route of an employment tribunal when other avenues were available to her….. We will continue to represent what we believe are the best interests of every rider currently supported through the high performance system, and all those in our sport who hope to one day compete at an Olympics or Paralympics.” (McGowan, 2019).

Employment rights: employees vs workers

Determining the question of Jessica’s Varnish’s employment status (employee or worker) is vital to this case as it will decide what employee rights she is entitled to (if any).

True, most workers are protected against unlawful discrimination in terms of the Equality Act 2010, and harassment and victimisation in relation to ‘whistle-blowing’ actions (reporting of wrong doing in the work place). However, you must be an employee in order to be protected from unfair and wrongful dismissal (CIPD, 2020)

Section 230 of the Employment Rights act 1996 defines an employee as “an individual who has entered into or works under a contract of employment.”

Over many years, UK courts and Tribunals have developed specific tests that must be fulfilled in order to assess an individual’s employment status (Crossan, 2017). These include:

  • Mutuality of obligation
  • The control test
  • The economic reality test
  • The organisation or integration test

The definition of a worker (which is a wider concept than an employee) can also be found in different pieces of legislation e.g. the National Minimum Wage Act 1998 and the Working Times Regulations 1998. The Chartered Institute of Personnel Development (CIPD) defines a worker as:

an individual who undertakes to do or perform personally any work or service for another party, whether under a contract of employment or any other contract.’(CIPD, 2020).

Although the CIPD definition is based on the Employment Rights Act 1996, the definition of worker varies from statute to statute.

As in other parts of the UK employment market, the employment status of athletes will often be a contested concept, meaning that the various tests listed above will have to be deployed by the courts and Tribunals to resolve the issue. It is notable that a large part of Jessica Varnish’s original Tribunal action focused on the control test i.e. she had to follow the training regime laid down by British Cycling in order to be eligible for continued funding from UK Sport.

Athletes in the world of social media

Social media is a great way for an athlete to connect with their existing fans. As well as this, it also allows you, the individual fan to connect with others whom you have never met, such as other fans of your team/sport, or supporters from your hometown etc. Athletes, amateur and elite, can have their use of social media restricted and regulated through provisions contained in Standard Player Contracts.

This is completely understandable from the point of a view of an employer or sponsor because an athlete’s online activities/posts may bring about critical, reputational harm and financial loss to partnered clubs and associations. Athletes’ contracts may contain certain restrictions on what they can and can’t post on social media. However, these restrictions may or will vary from specific social media targeted polices (“blackout” before during and after games), to more general restrictions which cover wider aspects of an athlete’s behaviour (Social Media In Sport: Top Tips, 2020).

Clubs and organisation are urged routinely to remind athletes with regard to what is appropriate and inappropriate online behaviour. This can incorporate a reminder to athletes that, while they are not participating in the activity, they still have commitments to the employer and sponsors and are expected to stick to an agreed code of conduct – just as though they were working. Athletes may have both a personal and professional social media account, but the restrictions and requirements that they are expected to adhere do not change.

Social media allows athletes to secure sponsorship. Platforms such as Facebook, Instagram and Twitter are just some of the ways to reach thousands of people who you would not normally be able to target.

In the UK, athletes and brands must take care when posting promotions and sponsored posts. This is regulated by the Advertising Standards Authority and the Committee of Advertising Practice Codes. The CAP code requires that all advertising is easily identifiable.

In 2012, professionalfootballers, Wayne Rooney and Jack Wilshire broke this requirement after they posted a tweet under Nikes campaign slogan ‘#makeitcount’. The two athletes failed to make it clear that the tweets were in fact from Nike’s marketing communications. For an athlete or any individual using social media for promotional purposes, they must add ‘#spon’ or ‘#ad’ to a post, something which both Rooney and Wilshire failed to do. This helps to make the advertising easily identifiable and prevents anyone from failing to meet the requirements (Social Media In Sport: Top Tips, 2020).

A delicate balancing act

Guidelines for athletes to follow for social media may vary from each profession. It’s no surprise that what Athletes post can be seen potentially by millions of people around the world. There is a need to ensure that, before posting any content, they are happy with what they are about to upload. Are they happy for the post to be linked back to them and be easily accessible forever? Would they be happy if the post was to end up appearing somewhere which was not intended e.g TV, gossip magazines/blogs? It can be a very delicate balancing act.

It is important to respect yourself, your sport and the club/organisation of which you are part. Anyone, especially a public figure (such as athletes), must ask themselves, how might this be portrayed or received by my followers? Will this reflect negatively upon their “role model” status? Could my post effect sponsorship for them or the sport?

These are just a few guidelines that Scottish athletes have to consider Athletes must also ensure that the amount of time they are spending on social media is not affecting their performance. All of these factors are essential when considering what content to upload and share with your followers on social media. Ultimately it’s all about having respect for your audience and yourself.

Maternal/paternal rights for athletes

Many employees receive family-friends benefits which include parental leave or childcare. Diageo, for example, is a UK beverage company which recently introduced female employees to be offered a minimum of 26 weeks fully paid maternity leave under a new global policy (Rennie and Beach, 2020). The vast majority of employees, by contrast will receive just the statutory minimum maternity pay.

Maternity rights

Sporting bodies are generally falling behind in creating Family-Friendly policies which is inconsistent with modern attitudes towards athletes’ rights. Many British athletes e.g Jessica Ennis-Hill and Jo Pavey are parents, yet have still made a successful return to sport.

UK Sport Guidance states thatif a female athlete becomes pregnant they can continue to receive World Class Programme funding and support during pregnancy and after child birth. She (the mother) and her performance director are expected to agree a new appropriate training and competition programme that would map the athlete’s return.

Three months after childbirth, the sports performance director is encouraged to undertake a review with the athlete in order to assess them on her commitment to the agreed plan. By the end of the three months, if the athlete has made the decision that they in fact do not want to return to the sport, then they would be given a notice period depending on the length of time that they had been involved on the World Class Programme before they were then removed from funding (Falkingham, 2020).

Paternity rights

In 2019, the England Cricket team had its biannual tussle with rivals Australia. Batsman, Joe Denly, a new recruit to the England ranks, left the field at the end of the first 5 days of the final Test Match at the Oval in London. The athlete drove 60 miles to be with his wife for the birth of their daughter. The following day, Denly was back on the field facing the Australian bowlers. Joe then went on to create the highest score to date, only narrowly missing out on a Test century (Jackson and Brenner, 2018 and Anderson et al, 2019).

Denly’s story is a happier example than the experience of former Manchester United’s French star, Anthony Martial. The star was fined £180,000 and shamed publicly in 2018 for missing a week of training after flying to be his wife in order to support her through a difficult labour and welcome their son into the world. Two of the days in which he was away were dedicated to travel alone (Jackson and Brenner, 2018 and Anderson et al, 2019).

Sporting success is valued more than family. The famous one liner,“winners never quit and quitters never win” is one which athletes find so important. So much so that, in the 1990s, the President of Oakland athletics, Billy Bean missed his partner’s funeral in order to continue playing a game (Anderson et al, 2019).

These types of incidents sit completely at odds with decent treatment of employees. Organisations are increasing the length of time woman get full maternity pay. A study by the University of Birmingham found that only 9,200 new parents (just over 1% of individuals entitled) shared parental leave in 2017-18. However that rose to 10,700 in the financial year 2018-19. Companies now seem more willing to offer other options to just maternity leave, in the hope of recruiting and retaining high calibre employees (Birkett and Forbes, 2018).

How has Coronavirus has affected sport?

Law in sport is no different to ordinary law in that sporting organisations and sponsors have to respect and obey the rules. This has been particularly highlighted during the current COVID-19 pandemic crisis.

Coronavirus has caused major sports leagues and events around the world to cease current activities or cancel upcoming events due to strict lockdown rules (The Independent, 2020). COVID-19 has forced governing bodies to try to intervene and protect institutions within their area, for example, FIFA (the governing body of football) has set up a £121 million relief fund for its 211 national associations (Keegan, 2020)

The lockdown laws which come as part of the pandemic haven’t just affected international bodies but also had an affect domestically. In Football, national leagues such as the Premier League in England have come to a halt until further notice ,whilst some other leagues around Europe declared their seasons over or null and void as they have in Ligue 1 (France) and the Eredivisie (The Netherlands).

The halting of sporting activities isn’t the only implication of this crisis: it has had a major impact on the employment of all those involved in sport directly or indirectly.

In the UK, furloughing has been introduced to try and help businesses to pay their employees. The furlough scheme means that the UK Government pays 80% of employees’ wages up to a ceiling of £2500 a month (HMRC, 2020).

This causes issues, however, for many professional, sporting institutions, as many athletes are earning far above £2500 a month. Therefore such individuals are ineligible to be furloughed placing sporting institutions under serious financial strain should players refuse to take wage cuts. FC Sion, a football team in Switzerland, were forced to terminate the contracts of 9 footballers after they refused to take pay cuts (BBC, 2020b)

In other instances, the furlough scheme has been supported and it has had the desired effect. The McLaren Formula 1 team main drivers Carlos Sainz and Lando Norris have taken pay cuts in order to support their fellow employees on the team (Galloway, 2020)

Added to this, the UK Health Protection Regulations 2020 have prevented sports such as Formula 1, Football, Boxing or Rugby being performed because of current social distancing restrictions. Whilst this has had a detrimental effect on the sporting world as a whole, it has provided a boost in less traditional fields. E-sports have increased in prominence since the cancellation/postponement of traditional sporting events. Formula 1, in particular, has capitalised on the potential E-sports platform. Formula 1 has been hosting ‘virtual’ Grand Prixs where a mixture of current drivers, figures in the sport, other sportsmen or celebrities race against each other by using the official Formula 1 video game (Dixon, 2020).

The reaction has been positive as a reported 3.2 million viewers witnessed the inaugural virtual Grand Prix, the stature of many of those involved is testament to its success as prominent figures in world sport such as Thibaut Courtois, Ciro Immobile and Sir Chris Hoy have all competed in the virtual Grand Prix (Dixon, 2020)

The cancellation of major sporting matches and events is causing massive implications financially and logistically. In Rugby there had been suggestions that games in France could be played behind closed doors should the league be started again. Club owners highlighted objections to this, in particular, the owner of ‘Stade Toulouse’ would potentially lose millions of Euros before the end of the season should games be played behind closed doors (Ultimate Rugby, 2020).

The UK Health Protection Regulations 2020 have caused major financial implications to sporting institutions across the country. Leeds United, a football club competing in the English Championship, is set to miss out on lucrative financial benefits of promotion to the Premier League. Being promoted to the Premier League guarantees Clubs a large sum of prize money worth millions. However, the following season they spend in the premier league promises them close to £100 million even if they finish last place (Winters, 2020). This level of money could help Leeds United recover from its financial deficit. At the time of writing, all games have been postponed for the foreseeable future meaning that there is a lack of certainty as to what happens next.

Logistically on a global scale COVID-19 has caused the disruption of massive global events that take years of organisation to have now been postponed. Although some of the postponements are only estimated to be a year, the cost can still be detrimental. Reports claim that a one year delay of the Olympics could result in £2.3 billion in further costs (Mail online, 2020).

Conclusion

COVID-19 has emphasised key aspects of employment law, even at an elite level in sport there is more protection being employee rather than being a worker or self-employed. Many members of clubs and teams in different sports have agreed pay cuts. However, they are still being paid. This situation isn’t the same for professional golf: players are registered as self-employed. Footballers are still being paid or have at least agreed a deferral of wages or a temporary pay cut, but nevertheless, their employment contract still protects them during this time of major uncertainty. Golfing stars such as Rory McIlroy and Tommy Fleetwood do not have this protection unlike football stars such as Harry Kane and Raheem Sterling.

It is clear that UK employment law needs to do more in determining an athlete’s employment status. The UK Government must also work harder to protect athletes and their rights. Due to the catastrophic pandemic, not only will sports organisations and clubs suffer but also their athletes. The only certainty in these most uncertain times is that Covid-19 is likely to generate a plethora of future legal disputes which will shape our legal landscape, especially in the world of sport, for some time to come.

References

Anderson, E., Parry, K.D., & Batten, J., 2019. With women’s sport leading the way, male athletes could benefit from family-friendly policies too. Available at: https://scroll.in/field/942000/with-womens-sport-leading-the-way-male-athletes-could-benefit-from-family-friendly-policies-too [Accessed 22 April 2020].

Anderson, E., Parry, K.D., & Batten, J., 2020. Sporting Dads: Male Athletes Need Family-Friendly Policies Too. [online] Available at: https://www.google.co.uk/amp/s/theconversation.com/amp/sporting-dads-maleathletes-need-family-friendly-policies-too-125514 [Accessed 25 April]

BBC Sport. 2020. Should Sports Do More To Help Female Athletes Feel ‘More Comfortable’ Having Children During Career?. [online] Available at: https://www.google.co.uk/amp/s/www.bbc.co.uk/sport/amp/48336819 [Accessed 25 April]

BBC, 2020a. Coronavirus: How The Virus Has Impacted Sporting Events Around The World. [online] Available at: <https://www.bbc.co.uk/sport/51605235> [Accessed 22 April 2020].

BBC, 2020b. FC Sion sack nine players for reportedly not taking pay cut because of coronavirus crisis. Available at: https://www.bbc.co.uk/sport/football/51980881 [Accessed 22 April 2020].

Bennett, M., 2019. Sports Law In The United Kingdom | Lexology. [online] Lexology.com. Available at: <https://www.lexology.com/library/detail.aspx?g=7cc100e9-382e-4013-b1a0-8499c6889c0e> [Accessed 22 April 2020].

Birkett, H and Forbes, S (2018). Shared Parental Leave: Why is take up so low and what can be done? (1). Available at: https://www.birmingham.ac.uk/Documents/college-social- sciences/business/research/wirc/spl-policy-brief.pdf [Accessed 22 April 2020].

Chartered Institute of Personnel Development, 2020. Employment Status Q&As. [online] Available at: <https://www.cipd.co.uk/knowledge/fundamentals/emp-law/employees/status-questions> [Accessed 26 April 2020].

Dixon, E., 2020. F1’S Inaugural Virtual Grand Prix Draws 3.2M Online Viewers. [online] Sportspromedia.com. Available at: <https://www.sportspromedia.com/news/f1-virtual-bahrain-grand-prix-online-viewers-streaming-esports-julian-tan> [Accessed 22 April 2020].

Galloway, J., 2020. Carlos Sainz, Lando Norris take pay cuts as some McLaren staff furloughed. [Sky News online] Available at: https://www.skysports.com/f1/news/12433/11967263/carlos-sainz-lando-norris-take-pay-cuts-as-some-mclaren-staff-furloughed [Accessed 22 April 2020].

The Independent, 2020. Sport-By-Sport Look At The Impact Of Coronavirus Around The World. [online] independent.co.uk. Available at: <https://www.independent.co.uk/sport/sport-football-basketball-rugby-olympics-cancelled-coronavirus-impact-around-the-world-a9398186.html> [Accessed 22 April 2020].

Jackson, J. and Brenner, S., 2018. Anthony Martial faces fine despite return to Manchester United training. [The Guardian online]. Available at: https://www.theguardian.com/football/2018/aug/01/manchester-uniteds-anthony-martial-to-return-to-training-after-birth-of-child [Accessed 22 April 2020]

HM Revenue & Customs, 2020. Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme. [Online]
Available at: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme
[Accessed 22 April 2020].

Keegan, M., 2020. FIFA draw up plans for emergency relief fund as governing body looks to help cash-strapped football authorities facing ruin due to coronavirus pandemic [Mail online]. Available at: https://www.dailymail.co.uk/sport/sportsnews/article-8172853/FIFA-draw-plans-emergency-relief-fund-governing-body-looks-help-football-authorities.html [Accessed 22 April 2020].

Laver, N., 2020. Sport And The Law [online] Available at: <https://www.inbrief.co.uk/sports-law/sport-and-the-law/> [Accessed 22 April 2020].

Mail online, 2020. Tokyo Organisers Counting The Cost Of Postponement Of Olympic Games. [online] dailymail.com. Available at: <https://www.dailymail.co.uk/sport/sportsnews/article-8181433/Coronavirus-Tokyo-organisers-counting-cost-postponement-Olympic-Games.html> [Accessed 22 April 2020].

McGowan, A., 2019. Varnish Wins Right To Appeal Tribunal. [online] BBC Sport. Available at: <https://www.bbc.co.uk/sport/cycling/50825263> [Accessed 24 April 2020].

Nicholson, R., 2019. Are Professional Athletes Employees?. [online] Shepherd and Wedderburn. Available at: <https://shepwedd.com/knowledge/are-professional-athletes-employees> [Accessed 24 April 2020].

Rennie, J., Beach, N., 2020. Win-Win: A Progressive Approach To Maternity & Paternity Rights For Professional Athletes – Lawinsport. [online] Lawinsport.com. Available at: https://www.lawinsport.com/topics/item/win-win-a-progressive-approach-to-maternity-paternity-rights-for-professional-athletes [Accessed 25 April]

Scottish Athletics, 2020. [online] Available at: https://www.scottishathletics.org.uk/wpcontent/uploads/2014/04/SAL-Social-Media-Guidelines-191016.pdf [Accessed 23 April]

Talk Sport, 2018. The Money Each Premier League Club Earned From TV And Their Final Position. [online] Available at: <https://talksport.com/football/376346/how-much-money-each-premier-league-club-earned-tv-and-their-final-position-180518283150/> [Accessed 22 April 2020].

The National Law Review. 2020. Social Media In Sport: Top Tips. [online] Available at: https://www.google.co.uk/amp/s/www.natlawreview.com/article/social-media-sport-toptips%3famp [Accessed 23 April]

Trades Union Congress, 2020. Employment Status And Rights. [online] Available at: <https://www.tuc.org.uk/employment-status-and-rights> [Accessed 25 April 2020].

UK Health Protection Regulations 2020

Ultimate Rugby, 2020. Top 14 Owner Claims His Club Will Lose Millions If Games Are Played Behind Closed Doors. [online] Available at: <https://www.ultimaterugby.com/news/top-14-owner-claims-his-club-will-lose-millions-if-games-are-played-behind-closed-doors/625829> [Accessed 22 April 2020].

Winters, M., 2020. The colossal cost of cancellation: Leeds could lose £100m MINIMUM if promotion to Premier League is scrapped while National League leaders Barrow may miss out on £1m if the season is voided… the impact on lower leagues would be devastating [Mail online]. Available at: https://www.dailymail.co.uk/sport/sportsnews/article-8293009/Leeds-United-lose-100m-MINIMUM-promotion-Premier-League-scrapped.html [Accessed 22 April 2020].

Copyright Stephanie Crainey, Ross Codona and Briege Elder, 22 April 2020

Sick pay in the UK

By Rachael Holton, Ryan Kelly, Amy McWilliams and Jamie Watt (Editor: SJ Crossan)

As a society, we understand the concept of employment. You offer to work for an individual or an organisation in return for payment. Nonetheless, the status of employment, the kind of work and what kind of contract you have can take many forms. What are these different types of employment status? Well, as per Section 230(1) of the Employments Rights Act 1996, an ‘employee’ refers to a person who has gone into or works under a ‘contract of employment’. However, this is not the only type of employment status that exists, and this is a common misconception of today’s generation. In the workforce, some individuals are classed as ‘workers’ or ‘self-employed’. What is the difference?

Differences in Employment Status

For the most part, an employee works under what is referred to as a ‘contract of employment or service’. The agreement will list the basic rights of a worker, for example, whether it is temporary or permanent work, annual leave and working hours. An example is displayed below:

You could be forgiven for believing that this was the most widely recognised kind of ‘work’ or employment. According to figures from the Office of National Statistics, however, just 13% of the workforce in London are classed as ‘employees’, with over 27% working in the gig economy (Rodgers, 2018).

An employee essentially works under a contractual agreement. However, in any case, the rights vary to that of an employee, who is typically qualified for additional, and dissimilar sorts of rights. A worker must finish the work themselves except if they are offered consent to subcontract the work. A business will frequently utilise such and individual to help for a set timeframe, giving them enough work to fill their days over the length of their contract (Rodgers, 2018).

Conversely, a self- employed individual is classed as a subcontractor, who maintains their own business and, in this manner, assumes full liability for everything that accompanies that status. They work for themselves, implying that a great part of the time employment law, unfortunately, does not cover them (Rodgers, 2018).

The issues arising from an individual’s employment status can be seen in the case of Knight v Fairway & Kenwood Car Service Ltd UKEAT/0075/12/LA. The claimant was a cab driver working with the respondent organisation under written terms. If he paid the present lease and gave appropriate notices, he could work, or not, as he wished with no antagonistic outcomes under the agreement. He left the respondent organisation in the wake of being approached to do taxi jobs once they had been taken paying little mind to the conduct of the specific customer. He claimed wrongful dismissal, i.e. a claim for a breach of the employment contract.

Held: The Employment Tribunal ultimately decided that he was not working under a ‘contract of employment’ thus his case could not be heard by them. The claimant submitted an appeal. Nevertheless, the Employment Appeal Tribunal dismissed the claim on the grounds that the composed terms did not require any base or sensible measure of work from the claimant; he was allowed to work or not work. Nor in the conditions was there scope for inducing such a commitment from the way that the claimant, in truth, worked 7 days per week.

Employment Rights vs Employment Status

The distinction between these types of employment status’ is so important in the workplace, and it is crucial that employers and individuals are aware of such differences. All employees are workers in a sense; however, employees get certain employment rights in their agreement that a worker does not. The difference between a few of the rights available to individuals, based on their employment status can be seen below:

In the event that an individual is uncertain about their rights in relation to employment law, the Advisory, Conciliation and Arbitration Service (ACAS) has set out the rights these individuals are entitled to, depending on their employment status. A link to these rights can be found below:

https://www.acas.org.uk/checking-your-employment-rights

Now, while there are laws that cover both employees and workers e.g. under Section 10 of the Employment Relations Act 1999, both employees and workers have the right to be accompanied by another individual in disciplinary or grievance hearings, there can be clear differences in how employees and workers are treated. A significant topic that has come under scrutiny in the past, and especially now in these uncertain times, is that of Sickness and Absence in the workforce, in particular, the right to receive or claim Statutory Sick Pay (SSP).

Statutory Sick Pay

Positioned above is a copy of the Statutory Sick Pay document.

As previously mentioned, some UK employees could be entitled to receive a form of sick pay from their employers, otherwise known as contractual sick pay. However, the amount of money paid depends on the length of time the staff member has worked for at the commencement of the absence. Those who have worked at the organisation for less than a year, for example, may receive full pay for five weeks, and half pay for a further five weeks. For those, who had more than five years’ service, they would receive 26 weeks full salary and a further 26 weeks half pay (Crossan, 2020).

On the flip side, for employees who are not entitled to receive contractual sick pay, Statutory Sick Pay can be claimed. In order to be eligible, claimants must be earning a minimum of £120 before tax per week. To test whether s/he qualifies for SSP employees submit a written document to their employer, if requested, before a set deadline (Crossan, 2020).

If any of our readers wish to obtain access to this form, we have provided a link below:

https://www.gov.uk/statutory-sick-pay/how-to-claim

Sick Pay Across the Globe

On the other side of the world, however, in the US organisations are not obligated or required by federal law to offer paid sick leave. However, the Family and Medical Leave Act, established in 1993, enables eligible staff members of insured employers to take unpaid, job-protected leave for specified family and medical reasons (U.S. Department of Labour, 2020). Even though, organisations are not legally obliged to pay staff members for sick leave under federal law, some states require companies by law to offer sick leave. An example of this is the state of Massachusetts which permits five days of sick leave for employees (Foothold America, 2020).

Furthermore, in Sweden, members of staff who cannot work due to sickness, can normally obtain compensation for the full period that they are off work. At the start of the time off, a deduction to 20% of the compensation of the sick pay that you can receive during a normal working week (European Commission, 2020). In order to be eligible to receive sick pay from the employer, staff members must have worked for a minimum period of one month minimum or have worked continuously for fourteen days (European Commission, 2020). Workers who are off work due to sickness for more than a week must provide a medical certificate. In addition, for employees who are sick for more than two weeks, the Swedish Social Insurance Agency can provide a sickness cash benefit. In order to secure this entitlement, staff members must be absent for a minimum of a quarter of their normal working hours as a result of sickness. Whether employees receive this compensation is determined by their ability to work and not the severity of the sickness, as well as whether they are medically insured and providing a medical certificate that describes the sickness or injury (European Commission, 2020).

Coronavirus

In recent times, the Coronavirus (COVID-19) outbreak has had a detrimental effect on businesses around the world. It started in China and has infected people from one hundred and eighy five different countries. The ONS (Office for National Statistics) reported that more than a quarter of the 5,316 businesses surveyed have temporarily shut down or paused trading for the period 23rd of March to 5th April due to the COVID-19 outbreak (ONS, 2020). The virus has affected the operations of many organisations: many have seen a decrease in turnover and some organisations have even been forced to cease trading indefinitely.

Boeing “Body Blow”

Multinational corporation, Boeing, is one of the most prominent companies to be hit by the effects of the virus. The company told BBC News that they may have to cut up to 15,000 jobs, after the travel industry has been torn apart by the pandemic, while 10% of jobs will be cut over the organisation, Boeing conceded that the losses would be more extreme in certain divisions, for example, its commercial airlines (BBC News, 2020).

Most importantly, the workforces of many organisations have faced challenges due to the virus. More than half of respondents to The Opinions and Lifestyle (OPN) Survey said Coronavirus has affected their wellbeing (ONS, 2020). Full results of the survey responses can be obtained from the following link:

https://www.ons.gov.uk/surveys/informationforbusinesses/businesssurveys/businessimpactofcoronaviruscovid19survey

But the big question is, does the right to sick pay (that traditionally has only ever been available to employees), still apply amidst a global pandemic?

Well, ACAS has advised that employees and workers should receive any Statutory Sick Pay (SSP) due to them as of 13th March 2020 from their first day of isolation if the following applies:

  • They have Coronavirus
  • They have Coronavirus symptoms (fever, new continuous cough)
  • Someone in their household is showing Coronavirus symptoms
  • They have been told to self-isolate by a doctor (NHS 111)

They then must follow the UK and Scottish government guidelines for self-isolation. The individual must self-isolate for seven days and anyone else who lives in their household must self-isolate for fourteen days. Some employers may offer more than SSP, known as ‘contractual’ sick pay, as previously mentioned.

If an employer requires proof of sickness, then the workplace’s normal sickness reporting procedures should be followed. As normal, an employee can self-certify for the first seven days of sickness, without a sickness note from a doctor. If self-isolating for a period that exceeds seven days, then an online self-isolation note can be obtained from the NHS website (ACAS, 2020). The following link will take readers to the NHS self-isolation page, whereby they can request a self-isolation note:

https://111.nhs.uk/isolation-note/

Probationary Periods

Another factor that has come under question frequently amidst the pandemic, is whether probationary periods are still in place. Probation is commonly a multi month process, during which there is consistent evaluation and feedback of the employee by the employer. Formal probation audit meetings and Probation Reports, are finished at customary intervals, typically following two, five and eight months (Forestry and Land Scotland, 2020).

The point of the procedure is to give the two parties sufficient opportunity to evaluate whether they are appropriate for one another. By finishing effective reviews and highlighting areas of improvements, you are likewise forestalling circumstances where you need to dismiss staff during their probation period (Willis, 2019). Employees who are currently serving their probationary period have not acquired enough service to be able to bring a claim for unfair dismissal (which is 103 weeks’ for employees who started on or after 6 April 2012), but there is potential to bring claims for workplace discrimination and whistle blowing. The following story, involving Eileen Jolly, is an example of how costly discrimination dismissal cases can be for employers.

Age Discrimination

Eileen Jolly, a medical secretary (89) has been named as one of the oldest employees to successfully win an age discrimination claim in the UK. The elderly woman was awarded £200,000 by the NHS after being dismissed over claims she was not capable of operating a computer. She was said to have “catastrophic failure in performance” after becoming accustomed to “old secretarial ways”. Not willing to sit back and take the discrimination, she took her NHS trust to an employment tribunal. The Judge present, Andrew Gumbiti-Zimuto wrote: “There was evidence of the claimant’s training having been inadequate, incomplete and ‘on the job’ training was ad hoc and not directed” (Smith, 2019).

New Guidelines

Thankfully, however, new Coronavirus guidelines have stated that many individuals currently on probationary periods will have their probationary period paused or extended (Forestry and Land Scotland, 2020).

Furlough

What is also important to discuss, is that due to the outbreak, businesses have been forced to furlough many of their workers as this will allow them to take advantage of the governments Coronavirus Job Retention Scheme (CJRS). To furlough an employee means to temporarily suspend or layoff an employee, this is usually done without pay. This term is most used in US employment law and is not recognised within the UK. Therefore, the term left many workers confused when Rishi Sunak, Chancellor of the Exchequer, used the word ‘furlough’ in his Coronavirus Job Retention Scheme (Bernal, 2020).

The ONS reported that for those businesses who were still trading in the UK, 21% of staff had been furloughed (under the terms of the CJRS) from the period of 23rd of March to the 5th of April (ONS, 2020). The CJRS allows employers to claim 80% of their employee’s wages from the government, up to a maximum of £2,500 a month – this includes those working on zero hours contracts and flexible workers. This is a temporary scheme in place for four months starting from the 1st of March 2020 – depending on the circumstances, the scheme could be extended. This allows companies to furlough employees rather than dismiss them. It is important to note that if a worker is self-isolating, they cannot be furloughed and should receive SSP until they return to work.

The minimum time period for furloughing workers is three weeks and they are not permitted to rotate which of their employees are furloughed; this can be difficult if someone who is still working is required to self-isolate/falls ill. It is important to note that if a worker is self-isolating, they cannot be furloughed and should be receiving statutory sick pay or enhanced sick pay (if in their contract) until they return to work. Due to this, CJRS cannot be claimed by employers for these employees to ‘make up’ any statutory sick pay/ enhanced sick pay they are receiving.

Employees who are ‘shielding’ (those who have been contacted by the NHS and are required to self-isolate due to extremely high risk of getting very ill due to COVID-19) for twelve weeks are permitted to be placed on furlough. Employers who insist that vulnerable employees continue to attend work at this time, where the work cannot be done at home, could be considered to be breaching their duty of care. The following case displays the effects of a breach of the employer’s duty of care in the workplace (ONS, 2020).

In Walker v Northumberland County Council [1995] ALL ER 737, the pursuer worked in an especially unpleasant social work post for the Council. He had just endured a breakdown because of exhaustion and an absence of help from his managers. His manager gave confirmations that protections would be set up upon his arrival from sick leave so as to decrease the dangers of stress. The pursuer came back to work yet endured a second breakdown in light of the fact that the Council had neglected to take sensible consideration to forestall him experiencing mental wounds. The follower brought a case for harms against the Council.

Held: by the House of Lords that the pursuer ought to be treated as an essential victim who was qualified for damages because of the Council’s carelessness. The Council had returned him to his past (unpleasant) post in the wake of knowing about the primary breakdown and it was, thus, reasonably foreseeable that if the claimant was exposed once again to these upsetting conditions he would almost certainly, this would make him endure mental injury.

Amazon Workers Fight Back

The severity of the current circumstances is evident in the following news story.

Several Amazon distribution centre specialists over the US will not appear for work this week by phoning in sick, denoting the biggest nationwide protest so far against the organisation’s response to Coronavirus. Beginning on Tuesday 21 April 2020, more than 300 Amazon employees have vowed to remain at home. This is as a result of rising disappointment amongst employees as the organisation has neglected to give adequate PPE to staff, failed to execute ordinary temperature checks it guaranteed at distribution centres and would not permit employees to take sick leave (The Guardian, 2020).

Employees of the multinational tech company are demanding sick pay and the right to not be punished for utilising their right to freedom of speech. While there has been no formal action or resolution as yet, Amazon did issue the following statement (The Guardian, 2020):

Nothing is more important than the safety of our teams. Our employees are heroes fighting for their communities and helping people get critical items they need in this crisis.

However, if we do not see change soon, could this be the start of the global e-commerce’s deterioration? We sure hope not.

Readers can access the full article, published by The Guardian below:

https://www.theguardian.com/technology/2020/apr/20/amazon-warehouse-workers-sickout-coronavirus

Disney to furlough workers

Disney is also an organisation that has been hit significantly by Coronavirus and as a result, a Disney representative presented the following statement: “With no clear indication of when we can restart our businesses, we’re forced to make the difficult decision to take the next step and furlough employees whose jobs aren’t necessary at this time.” (Godfrey, K., 2020).

We encourage our readers to watch the video presented to gain a deeper understanding of just much of an impact this pandemic is having on employment worldwide:

Conclusion

In conclusion, Statutory Sick Pay (SSP), is a well-known facility available potentially to most employees throughout the UK. It has been in place, in its current form, since 1982, aiding those unable to work due to sickness and other health related issues, it is a hugely worthwhile employment right. Now, more than ever, we are (unfortunately) having to analyse such an employment right as a highly debated topic because of the Coronavirus pandemic. However, whilst the pandemic continues to spread rapidly, the UK is also offering protection to those workers who do not normally qualify for Sick Pay, in terms of University Credit, Contributory Employment and Support Allowance. Luckily for these individuals, the UK Government has stepped in and has extended SSP during the Coronavirus lockdown. Overall, it is safe to say that SSP has been of great help in relation to sick workers with income support and although its usefulness may not always be apparent, it is times like this we truly start to appreciate the value of such employment rights.

References

ACAS, 2020. ‘Coronavirus (COVID-19): advice for employers and employees’ [online]. Available at: https://www.acas.org.uk/coronavirus/self-isolation-and-sick-pay [Accessed: 24thApril 2020].

BBC News, 2020. ‘Coronavirus: Boeing to cut 15,000 jobs in ‘body blow’ [online]​    Available at: https://www.bbc.co.uk/news/business-52468882 [Accessed: 29th April 2020]. 

Bernal, N., 2020. ‘The UK’s coronavirus furlough scheme explained by experts’ [online]. Available at: https://www.wired.co.uk/article/uk-furlough-scheme-job-protection [Accessed: 26th April 2020].

Crossan, S., 2020. ‘Pay day?’ [online]. Available at: https://seancrossansscotslaw.com/2020/04/05/pay-day/ [Accessed: 28th April 2020].

Employment Rights Act 1996

Employment Relations Act 1999

European Commission, 2020. ‘Employment, Social Affairs & Inclusion’ [online]. Available at: https://ec.europa.eu/social/main.jsp?catId=1130&langId=en&intPageId=4810 [Accessed: 28th April 2020].

Family And Medical Leave Act, 2020. ‘Are US workers entitled to paid sick leave?’ [online]. Available at: https://www.footholdamerica.com/faqs/employing-a-us-worker/entitled-to-paid-sick-leave/ [Accessed: 28th April 2020].

Forestry and Land Scotland, 2020. ‘Covid-19 Coronavirus: Employee Advice’ [online]. Available at: https://forestryandland.gov.scot/images/staff/covid-19/02.04.20/1._Covid19_Coronavirus_-_Advice_for_Employees.pdf [Accessed: 29th April 2020].

Godfrey, K., 2020. ‘IT’S A SAD WORLD Disney furloughs staff and cast members and stops annual pass payments as theme parks remain closed’ [online]​​​   Available at: https://www.jennyeve.co.uk/blog/buzzwordbusinessblog/david-goliath-and-employment-status [Accessed: 29th April 2020]. 

Hunt, D. 2020. ‘Coronavirus Job Retention Scheme: the details (26 March)’ [online]  Available at: https://www.farrer.co.uk/news-and-insights/blogs/coronavirus-job-retention-scheme-the-details/ [Accessed: 27th April 2020].

Jennyeve, 2017. ‘Making the employee/worker/self-employed distinction in 2017 and what it means for your organisation’ [online] Available at: https://www.jennyeve.co.uk/blog/buzzwordbusinessblog/david-goliath-and-employment-status [Accessed: 27th April 2020].

Paul, K., 2020 Hundreds of Amazon warehouse workers to call in sick in coronavirus protest; The Guardian [online] Available at:

https://www.theguardian.com/technology/2020/apr/20/amazon-warehouse-workers-sickout-coronavirus [Accessed: 27th April 2020].

Office for National Statistics, 2020. ‘Coronavirus, the UK economy and society, faster indicators Coronavirus, the UK economy and society, faster indicators: 16 April 2020’ [online]. Available at: https://www.ons.gov.uk/peoplepopulationandcommunity/healthandsocialcare/conditionsanddiseases/bulletins/coronavirustheukeconomyandsocietyfasterindicators/16april2020 [Accessed: 25th April 2020].

Rodgers, E., 2018. ‘Worker or employee? What is Employment Status?’[online]        Available at: https://www.perkbox.com/uk/resources/blog/worker-or-employee-what-is-employment-status [Accessed: 27th April 2020]. 

Smith, L., 2019. ‘NHS secretary, 89, sacked for ‘not being able to use computers’ wins £200,000’ [online]. Available at: https://www.mirror.co.uk/news/uk-news/nhs-secretary-89-sacked-not-20901143[Accessed: 29th April 2020].

Smith, L., 2019. ‘The 12 Most Notorious UK Discrimination Cases’ [online]. Available at: https://www.skillcast.com/blog/12-notorious-uk-discrimination-cases[Accessed: 29th April 2020].

UK Government, 2020. ‘Check if you can claim for your employees’ wages through the Coronavirus Job Retention Scheme’ [online]​​​​​​​​   Available at: https://www.gov.uk/guidance/claim-for-wage-costs-through-the-coronavirus-job-retention-scheme [Accessed: 25th April 2020]. 

U.S. Department of Labor, 2020. ‘Family and Medical Leave Act’ [online]. Available at: https://www.dol.gov/agencies/whd/fmla [Accessed: 28th April 2020].

Willis, A., 2019. ‘Dismissal During Probationary Period’ [online]. Available at: https://croner.co.uk/resources/end-of-contract/dismissal/dismissal-probationary-period/ [Accessed: 29th April 2020].

Copyright Rachael Holton, Ryan Kelly, Amy McWilliams and Jamie Watt, 28 April 2020

Challenging times …

The issue of employability and job security amidst these challenging times, with reference to specific organisations.

Alistair Lee, Niamh Mackenzie, Fraser Morrison and Abby Roberts (edited by SJ Crossan)

The Coronavirus does not pick and choose who to target – everyone is at risk. Therefore, on March 23rd, the UK went into full scale lockdown, three days after the Government put in place restrictions on select businesses. This lockdown has had a detrimental effect on almost every business, and thus has affected their employees in turn. A few months ago, before the COVID-19 outbreak and the World Health Organisation declaring a worldwide pandemic, most people would never have heard of the word ‘furlough’. Now, it is on everyone’s lips. It is critical for organisations to deal with their staff in the correct manner when it comes to their job. If not, their livelihood is at risk and their family’s livelihoods are at risk, particularly if they cannot take advantage of the Government’s furlough scheme.

Some companies have understood this and dealt with their employees correctly and efficiently, while some most certainly have not. People do not forget. If an organisation comes out of this pandemic looking worse for wear, due to their negative actions, it certainly will not recover quickly – if ever.

Virgin is one of many companies to handle this situation extremely poorly. Richard Branson has never been particularly liked by the people of the UK, plus he owns an airline – one of the most disliked types of organisations due to their price hiking. Therefore, this pandemic could have been used to gain some trust back – instead, it has done quite the opposite. On March 26th, Virgin Atlantic Airways said they would reduce their daily flights by 80% amid the drastic decline in travel owing to the coronavirus pandemic. Like many organisations, this steep decrease in business led Virgin to look at where they could cut costs to try and save the business. They decided to do this through their staff. Employees at the UK airline have been forced to take eight weeks of unpaid leave over the next three months. Amid backlash from this decision, Virgin released this statement:

“An increasing number of countries are now closing their borders – most significantly, the US, where a travel embargo from the UK comes into force on Tuesday (17th March). Though this was expected, it has accelerated the sharp and continual drop in demand for flights across Virgin Atlantic’s network, meaning immediate and decisive action is needed… Today, Virgin Atlantic will put drastic measures in place to ensure cash is preserved, costs are controlled, and the future of the airline is safeguarded.” (The Street, 2020)

While this seems a fair and logical response on the surface, if you delve a bit deeper, you begin to understand why it is so horrific that Virgin are not paying their staff while they’re on leave due to COVID-19.

Virgin Atlantic boasts revenues of £2.8 billion, with the Virgin Group as a whole commanding revenues of over £19 billion. (Virgin Annual Report, 2018). In addition to this, Richard Branson has a net worth of $4.4 billion (Forbes, 2020). In 1971, Branson was convicted and briefly jailed for tax evasion. This experience has not changed his attitude however, since in 2013, he described himself as a ‘tax exile’ having saved millions in tax by ending his mainland British residency and living in the British Virgin Islands. (The Daily Telegraph, 2013). And it is not just him personally that is doing this – his entire business empire is owned by a complicated series of offshore trusts and companies. If he were to liquidate all the company’s assets, he would pay extremely little in tax.

When you consider all the above, does Virgin’s statement seem fair and logical now? A multi-billion-pound organisation owned by a multi-billionaire who lives on his own private island that can fetch up to $87,500 per day, asking for a £500 million bailout from the Government (funded by taxpayer money) just so they can pay their staff doesn’t seem particularly fair and logical.

Denmark, Poland and France have all refused to bailout tax haven-controlled companies. The UK should do the same – refuse to pay the £500 million and tell Richard Branson to dig deep into his particularly selective pockets.

Virgin are not alone, however, when it comes to receiving criticism for their approach to dealing with staff during these strange times. British pub chain, JD Wetherspoon have recently received a lot of backlash from their questionable approach to the COVID-19 pandemic. The chain insisted that it could not afford to pay its staff during the crisis until the government had reimbursed the company for their wages (Davies, 2020). Tim Martin, founder of the company, sent a video out to his employees explaining the situation and the approach that the company had chosen to take after the government had called for all pubs to be shut to reduce the spread of COVID-19 (Ng, 2020). The employees were told that they would only be paid for the hours that they had worked up until 22nd March 2020 and that no further pay would be given until the furlough scheme had been put in place. The government had announced that they would pay 80% of staff wages up to £2,500 (Munbodh, 2020). However, this left many employees worried, due to the fact this could take until the end of April (Davies, 2020). Martin told his 40,000 employees that if they needed a wage, then they should consider taking on work with Tesco (Munbodh, 2020), causing considerable anger from employees who felt that they were unappreciated and being “abandoned” by their employer. Not only were Martin’s employees left questioning when they would next receive a wage, but many of the company’s workers were even stripped of bonuses that they had already managed to achieve (Ng, 2020).

The company received a lot of backlash online for this approach to the situation, with many members of the public vowing to “boycott” Wetherspoons pubs in the future once they have reopened for business (Brown, 2020). Piers Morgan, co-presenter of Good Morning Britain, posted on Twitter “Don’t go to Wetherspoons,” in response to Martin’s attitude towards the Covid-19 Crisis (Ingate, 2020). One member of the public even responded to the company by leaving a message for Tim Martin by graffitiing one of the Chain’s many pubs, The Postal Order. The words “pay your staff” and “pay up” were sprayed onto the windows of the pub in red and white paint (Ng, 2020). Photos of the vandalised pub, which were shared online, received a lot of support from individuals who condemned Tim Martin for suggesting to his employees that they should take on employment with Tesco following the closure of his pubs (Ng, 2020). A strike movement was also formed by a group of Wetherspoons employees called ‘Spoon Strike’ and the Bakers, Food and Allied Workers Union (BFAWU) and demanded that the company give them full pay. In a statement released by Spoon Strike, they wrote “Whilst other companies such as Costa have promised their staff eight weeks fully paid, Wetherspoons have left over 40,000 people without their next pay date. With no means of paying for rent, bills or food, and no warning” (Ng, 2020).

Following the large wave of backlash that Tim Martin and his company received, Mr Martin later announced that the first payment for his workers under the government job retention scheme would be made on 3rd April ‘subject to Government approval, and weekly thereafter’ (Brown, 2020). However, many members of the public are still shaming Martin, who is supposedly worth over £40million (Munbodh, 2020) for his initial response to the crisis and continue to vow to “boycott” Wetherspoons pubs once they have reopened for business.

The impact on the employment market in the UK is not all negative, however.

One example of initiatives that have been employed to help protect workers is a free online training scheme for furloughed individuals. The Department of Education run initiative offers online training courses for workers who are furloughed in order to “ improve their knowledge, build their confidence and support their mental health so they have skills they need to succeed after the coronavirus outbreak” (BBC News, 2020). The hope is that it helps to mitigate some of the impact the crisis will have on a post lockdown employment market, by facilitating the growth of workers during the pandemic.

Regarding individual firms that are looking after their staff during the crisis, the Co-operative Group are a fantastic example. To show their appreciation for their key workers keeping shops stocked and the nation fed, they have rewarded over 7,500 staff with an extra week worth of pay in addition to doubling their staff discount. The hope is to help to ease the financial burden they face during lockdown and to reward staff for going “above and beyond” during lockdown (Derby Telegraph, 2020). This shows that not all employers are looking to shirk away from the issues surrounding their workers’ rights – some are bolstering them and trying to offer a more supportive and robust working relationship during these trying times.

Ford’s UK division have also been taking steps to protect their workers by considering the duty of care that they have towards them. Despite March normally being one of the busiest months of the year for car sales, Ford’s UK boss Andy Barratt prevented any of his dealerships from ordering new cars. Barratt stated that cash liquidity was important in these financially pressing times and in order to prevent mass furlough he insisted that the cash reserves were better use keeping staff employed. The firm have opted to pay staff until at least June, where they will review the situation and take necessary steps from there. This will protect the rights of employees and their financial security, with Ford stating that; “All dealers need to focus on, is keeping their people safe, keeping their business viable and the revenue they need in return to keep those things going.” (Chaplin, 2020). They have not only done this for financial reasons – the company recognised that there is a great level of stress put on workers in the months of April and March to shift all of this new stock but they decided it was more important to protect the mental and physical health of employees and as a result, they have instructed that staff should work from home where possible. This shows a great awareness of the duty of care that Ford have for their staff, taking action to support their financial wellbeing, in addition to physical and mental health of their staff in these uncertain times.

After the initiative of companies such as The Co-op and Ford, the UK staple that is Boots have followed suit.

Boots is one of the largest retailers in the UK, both in terms of revenue and number of shops. Boots have around 2,500 shops and employ over 63,000 people across the United Kingdom – these range from local pharmacies to large health and beauty shops.

Due to the recent COVID-19 breakout, many shops and retailers have been forced to shut. Like other pharmacy chains, Boots have been designated as an essential retailer which is why they have remained open during this worldwide pandemic. However, staying open opens a whole new can of worms – particularly when it comes to keeping employees and customers as safe as possible, all the time.

To make sure that Boots employees are fully protected, they have put many factors in place to protect and support their staff, to take care of their customers by providing a consistently high service, and to also protect their business. By taking these measures, it ensures a safe, secure employment through difficult trading conditions. Some of the measures that have been taken by Boots to comply with their duty of care for their staff and customers include:

  • Flexible hours to cope with increased demand
  • Closing stores for one hour each day to clean and sanitise surfaces
  • Plastic visors provided for staff
  • Masks/aprons/gloves provided
  • Workers always asked to remain two metres apart throughout the day
  • Maximum of 3 customers allowed in the shop at the one time to maintain social distancing
  • Perspex screens put up at counters.

Boots are in some ways in a different trading position than many other companies across the globe. Their role is to provide healthcare to customers and to make sure patients receive vital medical products. Their employees benefit from this, but in turn they also have to now work in difficult and unsafe conditions with the COVID-19 situation, so Boots have to make sure they provide as much personal protection to safeguard their employees and customers, and to let them continue to trade effectively.

Boots employees do not have the risk of being put on furlough or being made redundant. They provide an important service and their employees are classed as Front-Line Workers, who have the permission under Government guidelines, to carry on working at their normal place of work. Because of these conditions, Boots employees feel that they continue to have job security, and do not have the worry of losing their income as many others do, through these difficult circumstances.

Instead of closing stores and pharmacies, and putting employees in insecure positions, they have created jobs out of this situation. Due to the high demand of prescriptions being delivered to patients aged 60 and above, they have had to recruit more than 400 new drivers for the pharmacy delivery and collection service, where prescriptions are collected from doctors’ surgeries. This has been done to cope with unprecedented demand but overall it is a major benefit as many people may have been made redundant and are grateful of having the opportunity to take on a different role, whilst also helping to provide support for people in need. They have also created jobs in their warehouses and distribution centres due to a significant increase in its online business.

Conclusion

In the coming weeks, the lockdown measures may or may not be lifted. However, even if they are, there will be several restrictive measures put in place and thousands of businesses will still not be allowed to open. This means that organisations will need to continue to support their staff as much as possible, and if they are not currently supporting staff to the best of their abilities, they will need to start doing so. It is as simple as that. For what is a relatively short period of time to take a financial hit by paying staff in full, while not bringing in any revenue, it is a drop in the ocean when you consider the potential long term impact of millions of customers boycotting the business because of the way they treated their staff during this pandemic.

Copyright Alistair Lee, Niamh Mackenzie, Fraser Morrison and Abby Roberts, 28 April 2020

Rock, paper, scissors …

Photo by Seán J Crossan

An interesting story from Canada caught my attention last week and got me reminiscing about the legal status of gambling agreements in Scotland. Sponsiones ludicrae they were otherwise referred to – ludicrous promises.

The Québec Court of Appeal had to consider whether a bet placed on the outcome of a game of rock, paper, scissors was legally enforceable under that Province’s laws. At stake lay a sum of $500,000 and the loser of the bet had taken out a mortgage to cover this. Luckily for him, the Court upheld the judgement of the trial judge who had determined that the bet was not legally enforceable because it was excessive. Strictly speaking, gambling agreements can be enforced in Québec, but under that Province’s laws the bet must not apply to a game of chance; it must require skill or bodily exertion. Admittedly, Justice Chatelain, the trial judge seemed to be split on whether rock, paper, scissors was strictly a game of chance or one which required some element of skill or bodily exertion, but she was eventually swayed by the fact that the size of the bet was excessive.

A link to the story on the Sky News website can be found below:

http://news.sky.com/story/500k-bet-on-rock-paper-scissors-written-off-by-appeal-court-in-canada-11978822

Gambling agreements are arrangements that people enter into usually by way of placing a bet on a variety of sporting events or other frivolous activities e.g. who will be the latest evictee from ITV1’s I’m a celebrity: get me out of here!

When I started my legal career, I could confidently say to people that gambling agreements had no legal status whatsoever. They were unenforceable.

The introduction of the Gambling Act 2005, however, fundamentally reformed this area of the law of contract (more about this later in the article).

The historical position in Scotland

As Professor Laura J MacGregor of the University of Edinburgh has pointed out the theoretical objections of the Scottish judiciary were often quite nebulous when it came to deciding the grounds on which gambling agreements were unenforceable (Pacta Illicita: A History of Private Law in Scotland; Volume II edited by Reid and Zimmerman (OUP: 2000)).

True, such agreements didn’t quite fall into into the category of pacta illicita or illegal contracts because, after all, gambling was, for the most part, a perfectly legal activity. This, of course, did not prevent certain members of the judiciary (from time to time) placing such agreements in the category of illegal contracts (see Lord Moncrieff’s conclusions in Calder v Stephens (1871) 9 M 1074) in this respect).

England, on the other hand, had taken a different approach from Scotland to gambling agreements. The Unlawful Games Act 1541, passed during the reign of King Henry VIII, had to all intents and purposes made nearly all gambling activities illegal. Although this legislation seems to have been enforced rarely (or never), its influence ensured that gambling contracts had the status of pacta illicita or illegal contracts: they were void and unenforceable in the English Courts. Over the centuries, the laws regulating gambling in England would become progressively liberalised, but the Act of 1541 cast a long shadow.

The end result in both Scotland and England was very much the same: gambling agreements were unenforceable, albeit this conclusion being arrived at on the basis of different philosophical principles (sponsiones ludicrae in Scottish decisions and illegality in English cases).

Historically, of course, successive UK Government were quite hypocritical in their attitude towards gambling activities. They were quite happy to tax the punters, yet the Scottish and English courts consistently refused to enforce such agreements. Typically, the courts regarded gambling agreements as below their dignity and not worthy of judicial scrutiny. In the past, unlucky punters who were slow or refused to settle outstanding gambling debts with a bookie may have found themselves having to do a runner from hired ‘muscle’, that had been engaged by the bookie, to persuade them to pay up.

It also cut the other way: a lucky punter might be outraged to learn that a bookie had no intention of paying out if a rank outsider had romped home in that year’s Grand National horse race.

I remember reading (with much amusement), the writer, John O’Farrell’s face off with a book maker in 1997*. O’Farrell, a life long Labour Party supporter, had placed a bet that Tony Blair would lead the Party to victory at the next British General Election. When the bet was originally put down, the odds against a Labour victory were high. Needless to say that, when Mr Blair won the General Election in 1997, O’Farrell was banking on a large payout. To O’Farrell’s initial consternation, the bookie was not willing to pay out and there was no legal avenue to force him to do so. O’Farrell, who made regular TV appearances on well known shows such as Have I Got News for You, cleverly used his media status to persuade (gently) the bookie to pay out his winnings. The bookie duly complied.

*Things Can Only Get Better: Eighteen Miserable Years in the Life of a Labour Supporter, 1979–1997 (1999, Black Swan).

Arguably, the unwillingness of Scottish (and English) courts to enforce gambling agreements over the centuries seems to stem from the time in which Christianity was a much more powerful influence in society. Although, there would appear to be limited scriptural objections to such activities, many Christian societies were disapproving because it was a means of obtaining a reward without putting in the effort of hard labour. If pushed to think of condemnation of gambling in the Bible, I can really only think of the example of lots being cast by the Roman soldiers for the clothing and possessions of Jesus Christ at the crucifixion on Good Friday (Matthew 27: 35; Mark 15: 24; Luke 23: 34; and John 19: 23-24 fulfilling Psalm 22: 18).

The words of the eighteenth century Scottish judge, Lord Kames come readily to mind when considering how gambling contracts were viewed:

“[Such a contract] ought not to be converted into a serious matter, by bringing the fruits of it into a Court of Justice … Neither doth this court profess to take under its protection every covenant and agreement. Many engagements of various sorts, the fruits of idleness, are too trifling, or too ludicrous, to merit the countenance of law; a court, whether of common law or of equity, cannot preserve its dignity if it descend to such matters.”

Two examples of the way in which gambling agreements were dealt with by the Scottish courts can be seen below:

Robertson v Balfour (1938) SC 207 Robertson had entered into gambling agreements with Balfour, a bookie, to place bets on two horses, ‘Swift and True’ and ‘Scotch Horse’. Both horses won their respective races, but Robertson received a mere £10 in winnings from Balfour. In fact, Balfour owed Robertson another £33 in winnings. Robertson had agreed that he would give Balfour additional time to pay him the balance of this debt.

Held: Robertson could not enforce the outstanding debt of £33 against Balfour. This was a gambling debt and the courts would not enforce it.

Ferguson v Littlewoods Pools Ltd (1996) GWD 21-1183 the members of a football pools syndicate had won several million pounds on a coupon – or so they thought. The syndicate members were completely unaware of the fact that the agent for Littlewoods Pools had not forwarded their stake money because he had stolen it. When the theft was uncovered, the syndicate members not unnaturally demanded that Littlewoods should honour the winning coupon. Littlewoods stated that it had never received the coupon. In response, the syndicate argued that Littlewoods should be held responsible for the dishonest actions of its agent.

Held: by Lord Coulsfield in the Outer House of the Court of Session that the contract between the syndicate and Littlewoods was a gambling agreement and it was, therefore, unenforceable. Lord Coulsfield refused to order to pay out the sum which the syndicate thought it had won.

Gambling syndicates

Despite the previous unwillingness of the Scottish courts to provide a remedy to a party seeking to enforce a gambling agreement, arrangements made between members of a gambling syndicate could be legally enforceable.

The Inner House of the Court of Session had reason to consider legal position as applicable to arrangements between syndicate members in Robertson v Anderson [2002] ScotCS 312 by focusing on an area of contract law known as collateral contracts.

In Robertson, two friends who regularly attended Bingo sessions together had an arrangement that they would share equally between them any prize money that they won. One night, Anderson won over £100,000 and Robertson, her friend, expected to receive her share. Unfortunately, Anderson backtracked on their agreement and Robertson took legal action to secure her share of the winnings. Evidence was led which established that both women had an agreement to divide their winnings equally. As this case occurred before the introduction of the Gambling Act 2005, the Inner House of the Court of Session accepted that, if Anderson had attempted to sue Mecca Bingo for the winnings, she would have been unsuccessful due to the doctrine of sponsiones ludicrae. The question before the Inner House, therefore, centred around whether the agreement between Anderson and Robertson was a collateral contract and, consequently, enforceable – albeit one which was slightly tainted by association with the main gambling agreement.

Held: the Inner House started that Robertson could enforce the collateral contract that she had with Anderson. Collateral contracts are linked to another contract or agreement and give rise to a completely different set of rights and duties. Their contract related to gaming, but was not of itself a gaming agreement. The issue before the court – whether Robertson was entitled to share in Anderson’s winnings – did not involve the enforcement of a gambling agreement. This was the crucial difference between this case and Ferguson v Littlewoods’ Pools (1996) which was discussed earlier in this article. In any event, the introduction of the Gambling Act 2005, to which we shall shortly turn, now means that this discussion is largely of historical interest only.

That said, the decision of the Inner House was hardly surprising given that, as far back as the 19th Century, Lord President Normand (in Knight & Co. v Stott (1892) 19 R 959) could state:

There is no legal taint in betting as to infect all the contracts which are in any way related to it.’

In this way, the Court of Session could find in favour of a betting commission agent being allowed to sue successfully for sums owed to him by his principal.

The Gambling Act 2005

Such cases as the two above and the musings of Lord Kames were consigned to the dustbin of history with the passage of the Gambling Act 2005.

This legislation came into force on 1 September 2007 and, as a result, of Section 335, the doctrine of sponsiones ludicrae or ludicrous promises in relation to gambling agreements was repealed.

Section 335(1) of the Act simply states:

The fact that a contract relates to gambling shall not prevent its enforcement.’

This important legal reform has meant that Scottish and English courts have jurisdiction to deal with disputes between parties to a gambling agreement and to provide them with a remedy.

Conclusion

Section 335 of the Gambling Act was a very significant development in the law of contract that swept away the doctrine of sponsiones ludicrae. This doctrine had long been an important and well-established part of the Scots law of contract and ensured that those individuals who were party to a gambling agreement had no effective legal remedy should a dispute arise. The Gambling Act 2005 now ensures that such agreements will be regarded as legally enforceable.

Such a reform would have been unthinkable in the past because no doubt the Christian Churches would have railed against it. Given the steep decline of the influence of Christianity in modern Britain, it is perhaps not a huge surprise that the UK Parliament introduced the Act. More generally, there was also greater toleration of gambling amongst the British public possibly as a result of the introduction of the UK National Lottery (introduced by the National Lottery etc Act 1993).

Copyright Seán J Crossan, 7 May 2020

Pay day?

Photo by Jordan Rowland on Unsplash

One of the most important common law duties that an employer has under the contract of employment is to pay wages to the employee.

This duty, of course, is contingent upon the employee carrying out his or her side of the bargain i.e. performing their contractual duties.

The right to be paid fully and on time is a basic right of any employee. Failure by employers to pay wages (wholly or partially) or to delay payment is a serious contractual breach.

Historically, employers could exploit employees by paying them in vouchers or other commodities. Often, these vouchers could be exchanged only in the factory shop. This led Parliament to pass the Truck Acts to prevent such abuses.

Sections 13-27 of the Employment Rights Act 1996 (which replaced the Wages Act 1986) give employees some very important rights as regards the payment of wages.

The National Minimum Wage Act 1998 (and the associated statutory instruments) and the Equality Act 2010 also contain important provisions about wages and other contractual benefits.

There are a number of key issues regarding the payment of wages:

  • All employees are entitled to an individual written pay statement (whether a hard or electronic copy)
  • The written pay statement must contain certain information
  • Pay slips/statements must be given on or before the pay date
  • Fixed pay deductions must be shown with detailed amounts and reasons for the deductions e.g. Tax, pensions and national insurance
  • Part time workers must get same rate as full time workers (on a pro rata basis)
  • Most workers entitled to be paid the National Minimum Wage or the National Minimum Living Wage (if over age 25) (NMW)
  • Some workers under age 19 may be entitled to the apprentice rate

Most workers (please note not just employees) are entitled to receive the NMW i.e. over school leaving age. NMW rates are reviewed each year by the Low Pay Commission and changes are usually announced from 1 April each year.

It is a criminal offence not to pay workers the NMW and they can also take (civil) legal action before an Employment Tribunal (or Industrial Tribunal in Northern Ireland) in order to assert this important statutory right.

There are certain individuals who are not entitled to receive the NMW:

  • Members of the Armed Forces
  • Genuinely self-employed persons
  • Prisoners
  • Volunteers
  • Students doing work placements as part of their studies
  • Workers on certain training schemes
  • Members of religious communities
  • Share fishermen

Pay deductions?

Can be lawful when made by employers …

… but in certain, limited circumstances only.

When exactly are deductions from pay lawful?:

  • Required or authorised by legislation (e.g. income tax or national insurance deductions);
  • It is authorised by the worker’s contract – provided the worker has been given a written copy of the relevant terms or a written explanation of them before it is made;
  • The consent of the worker has been obtained in writing before deduction is made.

Extra protection exists for individuals working in the retail sector making it illegal for employers to deduct more than 10% from the gross amount of any payment of wages (except the final payment on termination of employment).

Employees can take a claim to an Employment Tribunal for unpaid wages or unauthorised deductions from wages. They must do so within 3 months (minus 1 day) from the date that wages should have been paid or, if the deduction is an ongoing one, the time limit runs from the date of the last relevant deduction.

An example of a claim for unpaid wages can be seen below:

Riyad Mahrez and wife ordered to pay former nanny

Equal Pay

Regular readers of the Blog will be aware of the provisions of the Equality Act 2010 in relation to pay and contractual benefits. It will amount to unlawful sex discrimination if an employer pays a female worker less than her male comparator if they are doing:

  • Like work
  • Work of equal value
  • Work rated equivalent

Sick Pay

Some employees may be entitled to receive pay from the employer while absent from work due to ill health e.g. 6 months’ full pay & then 6 months’ half pay. An example of this can be seen below:

Statutory Sick Pay (SSP)

This is relevant in situations where employees are not entitled to receive contractual sick pay. Pre (and probably post Coronavirus crisis) it was payable from the 4th day of sickness absence only. Since the outbreak of the virus, statutory sick pay can paid from the first day of absence for those who either are infected with the virus or are self-isolating.

Contractual sick pay is often much more generous than SSP

2020: £95.85 per week from 6 April (compared to £94.25 SSP in 2019) which is payable for up to 28 weeks.

To be eligible for SSP, the claimant must be an employee earning at least £120 (before tax) per week.

Employees wishing to claim SSP submit a claim in writing (if requested) to their employer who may set a deadline for claims. If the employee doesn’t qualify for SSP, s/he may be eligible for Employment and Support Allowance.

Holiday Pay

As per the Working Time Regulations 1998 (as amended), workers entitled to 5.6 weeks paid holiday entitlement (usually translates into 28 days) per year (Bank and public holidays can be included in this figure).

Some workers do far better in terms of holiday entitlement e.g. teachers and lecturers.

Part-time workers get holiday leave on a pro rata basis: a worker works 3 days a week will have their entitlement calculated by multiplying 3 by 5.6 which comes to 16.8 days of annual paid leave.

Employers usually nominate a date in the year when accrual of holiday pay/entitlement begins e.g. 1 September to 31st August each year. If employees leave during the holiday year, their accrued holiday pay will be part of any final payment they receive.

Holiday entitlement means that workers have the right to:

  • get paid for leave that they build up (‘accrue’) in respect of holiday entitlement during maternity, paternity and adoption leave
  • build up holiday entitlement while off work sick
  • choose to take holiday(s) instead of sick leave.

Guarantee payments

Lay-offs & short-time working

Employers can ask you to stay at home or take unpaid leave (lay-offs/short time working) if there’s not enough work for you as an alternative to making redundancies. There should be a clause in the contract of employment addressing such a contingency.

Employees are entitled to guarantee pay during lay-off or short-time working. The maximum which can be paid is £30 a day for 5 days in any 3-month period – so a maximum of £150 can be paid to the employee in question.

If the employee usually earn less than £30 a day, s/he will get their normal daily rate. Part-time employees will be paid on a pro rata basis.

How long can employees be laid-off/placed on short-time working?

There’s no limit for how long employees can be laid-off or put on short-time. They could apply for redundancy and claim redundancy pay if the lay-off/short-term working period has been:

  • 4 weeks in a row
  • 6 weeks in a 13-week period

Eligibility for statutory lay-off pay

To be eligible, employees must:

  • have been employed continuously for 1 month (includes part-time workers)
  • reasonably make sure you’re available for work
  • not refuse any reasonable alternative work (including work not in the contract)
  • Not have been laid-off because of industrial action
  • Employer may have their own guarantee pay scheme
  • It can’t be less than the statutory arrangements.
  • If you get employer’s payments, you don’t get statutory pay in addition to this
  • Failure to receive guarantee payments can give rise to Employment Tribunal claims.

This is an extremely relevant issue with Coronavirus, but many employers are choosing to take advantage of the UK Government’s Furlough Scheme whereby the State meets 80% of the cost of an employee’s wages because the business is prevented from trading.

Redundancy payments

If an employee is being made redundant, s/he may be entitled to receive a statutory redundancy payment. To be eligible for such a payment, employees must have been employed continuously for more than 2 years.

The current weekly pay used to calculate redundancy payments is £525.

Employees will receive:

  • half a week’s pay for each full year that they were employed under 22 years old
  • one week’s pay for each full year they were employed between 22 and 40 years old
  • one and half week’s pay for each full year they were employed from age 41 or older

Redundancy payments are capped at £525 a week (£508 if you were made redundant before 6 April 2019).

Please find below a link which helps employees facing redundancy to calculate their redundancy payment:

https://www.gov.uk/calculate-your-redundancy-pay

Family friendly payments

Employers also have to be mindful of the following issues:

  • Paternity pay
  • Maternity Pay
  • Shared Parental Pay
  • Maternity Allowance
  • Adoption Pay
  • Bereavement Pay

Employers can easily keep up to date with the statutory rates for family friendly payments by using the link below on the UK Government’s website:

https://www.gov.uk/maternity-paternity-calculator

What happens if the employer becomes insolvent and goes into liquidation?

Ultimately, the State will pay employees their wages, redundancy pay, holiday pay and unpaid commission that they would have been owed. This why the UK Government maintains a social security fund supported by national insurance contributions.

An example of a UK business forced into liquidation can be seen below:

Patisserie Valerie: Redundant staff ‘not receiving final pay’

Up to 900 workers lost their jobs when administrators closed 70 of the cafe chain’s outlets. Disclaimer:

Conclusion

Payment of wages is one of the most important duties that an employer must fulfil. It is also an area which is highly regulated by law, for example:

  • The common law
  • The Employment Rights Act 1996
  • The Working Time Regulations 1998
  • The National Minimum Wage Act 1998
  • The Equality Act 2010
  • Family friendly legislation e.g. adoption, bereavement, maternity, paternity

Failure by an employer to pay an employee (and workers) their wages and other entitlements can lead to the possibility of claims being submitted to an Employment Tribunal. The basic advice to employers is make sure you stay on top of this important area of employment law because it changes on a regular basis and ignorance of the law is no excuse.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/05/13/inequality-in-the-uk/

https://seancrossansscotslaw.com/2019/03/31/the-gender-pay-gap/

https://seancrossansscotslaw.com/2019/04/05/the-gender-pay-gap-part-2/

https://seancrossansscotslaw.com/2019/06/26/ouch/

https://seancrossansscotslaw.com/2019/06/20/sexism-in-the-uk/

Thttps://seancrossansscotslaw.com/2019/04/30/paternity-leave/

Copyright Seán J Crossan, 5 April 2020