Not British enough?

Photo by Guillaume de Germain on Unsplash

It never feels to amaze me that by casually flicking through the weekend newspapers and news outlets you can discover stories about discrimination without really making much of an effort. I often say this to my students when I ask them to highlight a media story about an aspect of discrimination law at the beginning of each class. There’s really no excuse for saying that they couldn’t find anything to talk about.

And so it proved today – although I must give credit to my students who had alerted me to this story some weeks ago during one of their regular presentations.

The story concerns Mr and Mrs Mander who have just won their claim for unlawful direct discrimination on the grounds of their race. Race (including national origin and a person’s colour), of course, is one of the protected characteristics which is set out in terms of Sections 4 and 9 of the Equality Act 2010.

Section 13 of the Act contains the definition of direct discrimination.

The Manders are of Sikh and Indian heritage who were both born in the UK and are British citizens. Their parents all came to the UK when they were small children. The couple participate in ceremonies and events throughout the Sikh Holy Year, but otherwise they are not particularly religious.

In this respect, they are very similar to people from a White British or Irish background who attend Church, for example, at Christmas and Easter. The couple are both university educated professionals with senior positions in the IT industry and they are comfortably well off. Culturally, the Manders see themselves as British, but obviously they are rightly aware and proud of their heritage.

After numerous attempts to start a family, the Manders decided to investigate the possibility of adopting a child. For this purpose, the couple dealt with the Royal Borough of Windsor and Maidenhead and Adopt Berkshire. The experience would end in disappointment for the couple.

The Manders took a claim to Oxford County Court alleging direct race discrimination (and alternatively indirect discrimination in terms of Section 19 of the Act of 2010) against the Royal Borough of Windsor and Maidenhead and Adopt Berkshire (the defendants).

It should also be appreciated that Section 29 of the Equality Act makes it clear that individuals can experience unlawful discrimination in respect of the provision of a service – in this case that of adoption services.

The couple also alleged that they had suffered discrimination in respect of the European Convention on Human Rights in respect of the following:

  • Article 8 (the right to family and private life)
  • Article 12 (the right to marry and found a family)
  • Article 14 (the prohibition on discrimination)

In the event, at the trial, the Manders decided not to pursue claims in terms of Article 8 and Section 19.

Her Honour Judge Clarke summarised the essence of the Manders’ claim:

It is important to understand that Mr and Mrs Mander’s claim is not that they applied to be approved as adopters but were wrongly or unfairly rejected or discriminated against either during the process of consideration of their application for adoption, or when considering whether to match them to a child. Mr and Mrs Mander’s case is that the Defendants discriminated against them on the basis of their race before they made formal application to adopt, inter alia by refusing to progress them to the ROI/application stage.’

The Council and Adopt Berkshire did not at any time advance the argument that the Manders were in any way unsuitable as prospective, adoptive parents.

The justification given for the refusal to permit the Manders to proceed to the Registration of Interest/application stage was that it was unlikely that children from the same cultural background as the couple would become available for adoption in the short or longer term.

The couple were informed by letter from the Service Manager of Adopt Berkshire that:

In the last 17 months since Adopt Berkshire we have not had a single child of Indian or Pakistani heritage referred to us for placement …

The letter went on to state:

‘… it is hard at the current time to advise you how best to proceed regarding adopting within the U.K.; however another option that you may wish to explore is the option of adopting from India – while this is likely to be a lengthy process and may be financially stretching, it may ultimately be more likely to enable you to achieve the placement of a young child whose cultural heritage is similar to your own.

Eventually, the couple adopted a child from the United States of America, but at a considerable financial cost.

In evidence, the Manders were in no doubt that they had been treated differently by Adopt Berkshire:

There was no doubt in my mind that she [Mrs Popat, an employee of Adopt Berkshire] in fact made a judgment based on the colour of our skin. I was never treated like this before. I grew up in this country. My grandfather fought in the British Army – I was hurt and disappointed.’ (Mrs Manders)

Adopt Berkshire made me feel that the country where I grew up still saw me as different. It did not matter that I grew up here, as long as I was not white, I could not be British. I found this thought very disturbing – I had trouble sleeping at night because of how angry and helpless I felt.’ (Mr Manders)

Held: by the County Court that the Manders had suffered direct discrimination on the grounds of their race when their application was not progressed to the ROI/application stage of the adoption process.

Her Honour Judge Clarke did not, however, uphold the couple’s claim that their rights under Article 12 of the European Convention had been breached. As her Honour pointed out the right to adopt a child is not covered by the Convention, but rather is left to national law.

Judge Clarke also acknowledged that the discrimination suffered by the Manders was of a very serious nature:

I consider this to be a very serious case, which sits at the top of the middle, or bottom of the upper, range of the Vento bands …’

In this respect, the Manders were awarded both ordinary (£29,000) and special damages (£60,000).

The application of the Vento Bands was discussed in a previous Blog, Hurt feelings:

https://seancrossansscotslaw.com/2019/02/14/hurt-feelings/

A link to the decision of the County Court in Reena and Sandeep Mander v (1) Royal Borough of Windsor and Berkshire and (2) Adopt Berkshire [2019] Case No: C01RG184 can be found below:

https://www.judiciary.uk/wp-content/uploads/2019/12/Mander-Mander-v-RBWM-Adopt-Berkshire-FINAL-Judgment-C01RG184.pdf

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

https://www.theguardian.com/society/2019/dec/06/sandeep-reena-mander-win-race-discrimination-case-adoption-berkshire

Copyright Seán J Crossan, 7 December 2019

I wish I hadn’t done that … (continued)

Photo by Miguel Perales on Unsplash

In February of this year, a story on BBC Scotland’s website caught my eye which concerned the contractual duty of care owed by an employee to her employer.

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

https://www.bbc.co.uk/news/uk-scotland-glasgow-west-47135686

A case had been lodged at the Court of Session in Edinburgh – Peebles Media Group Ltd v Patricia Reilly (A226/17) February 2019.

The legal action taken by Peebles Media Group arose because the it claimed that a former employee (Patricia Reilly) was negligent when she transferred nearly £200,000 (by way of 3 payments) to an online fraudster. Reilly claimed that she believed that the order to transfer the cash had been legitimately issued by her boss (sent via email). The employer, on the other hand, alleged that Reilly ignored warnings from the company’s bankers that fraudsters were attempting to obtain funds from unsuspecting victims by sending what appeared to be legitimate orders from bosses. By not heeding these warnings, the employer clearly believed that Reilly was negligent in the discharge of her duties. It was also alleged that Reilly had no authority to make payments on behalf of the employer.

According to the BBC story in February, the employer’s bank had refunded approximately £85,000, but there was still the issue of an outstanding sum of nearly £107,000 – hence the dispute.

Well, Lord Summers, sitting in the Outer House of the Court of Session, has now made a decision in this case (Peebles Media Group Ltd v Patricia Reilly [2019] CSOH 89).

A link to the decision of the Outer House can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh89.pdf?sfvrsn=0

There is an implied, contractual duty that an employee will take reasonable care in the discharge of her duties. In other words, employees are expected to discharge their duties with skill and care. After all, this is one of the reasons that the employer has selected them.

Lord Summers stated that:

I acknowledge that employees have an implied obligation to exercise reasonable skill and care in the performance of their duties. That such a term exists is amply borne out by Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555 and Janata Bank v Ahmad [1981] IRLR 457.”

In Lister Romford Ice and Cold Storage [1957] 1 All ER 125, [1957] AC 555, [1956] UKHL 6  at the insistence of the insurers, the employer sued his employee, a lorry driver, for failing to drive safely (an implied term of his employment contract) and causing a fellow employee to suffer a personal injury as a result of the negligent driving.

In practice, these types of cases tend to be few and far between, but as we have seen with Lister and Janata Bank they are not entirely unheard of.

In Janata Bank v Ahmed [1981] IRLR 457 Ahmed was employed as bank manager. His employer sued him for damages for overdrafts that he had negligently authorised in respect of certain customers. Unfortunately, Ahmed had failed to investigate whether these customers were in a financial position to pay back the overdrafts. They were not and the debts owed to the bank amounted to a considerable sum. The English Court of Appeal held that Ahmed was liable in damages (£34,640) to his employers for the losses caused by his negligence. The equivalent figure in 2019 would be nearer £200,000.

Providing further context to these types of claims, his Lordship continued by making the following remarks:

More generally it can be observed that employers seldom sue their employees for damages. Other than Lister and Janata Bank (cited above), there are hardly any reported cases. Why that is so is a matter lying beyond the scope of this opinion. I accept that the directors of the pursuers in fulfilment of their duties to the company were entitled to consider whether an action was merited.”

His Lordship has concluded that Reilly should not be held liable to her former employer for the losses that it suffered as a result of the fraudulent enterprise. Admittedly, there had been breaches on Reilly’s part of her duty to exercise skill and care, but this of itself would not have prevented the fraud from occurring. It was a “tragic case”.

The employer’s argument that it that the emails which Reilly received purportedly from the managing director, Yvonne Bremner, were “obviously fraudulent” was not proved. Although Bremner was on holiday in Tenerife at the time of the fraud, the employer argued that Reilly could have contacted her to seek further instructions before making the payments.

Significantly, it was noted by the Court that Reilly had no reason to suspect that the emails instructing the payments were fraudulent. This was a sophisticated fraudulent enterprise known as a “whaling exercise”.

As for the employer’s claim that Reilly had no authority to make the payments in question, this was disproved. As Lord Summers noted:

… the defender [Reilly] had the authority to use the pursuers’ [Peebles Media] online banking facilities.

Even the employer’s bankers knew that Reilly had access to the online banking facilities. During an attempt to transfer funds, Reilly experienced with the online banking facilities and she had to seek assistance from a manager at the bank in order to make the payment. He remarked that, strictly speaking, she was an unauthorised person, but despite this awareness on his part he did nothing concrete to prevent Reilly from continuing to use the system.

Conclusion

I am prepared to go further than Lord Summers and speculate as to the lack of cases of this type. There are a number of very practical reasons why employers have tended not to pursue claims against employees:

  • It may not make much economic sense i.e. you might obtain a successful court decree for damages against an individual, but the practicalities of obtaining this sum from a low or modestly paid employee are almost nil; and
  • The strong aversion to negative publicity i.e. the fear of the reputational damage done by effectively putting the negligent acts of their employees in the spotlight of legal action.

Again, as Lord Summers said: it is a “tragic case” and the fraudster is still at large.

Copyright Seán J Crossan, 20 November 2019

Undue influence?

Photo by Simon Rae on Unsplash

A recent case in the Outer House of the Court of Session dealt with the issue of undue influence between a mother and her daughter, but don’t jump to conclusions – yet.

We often think of parents exercising a huge amount of influence over their children – especially when they are younger. This is a necessary condition of life. We trust and hope that our parents and guardians will use this influence for our benefit.

As the years go by, children naturally enough want to take control and make their own decisions – good or bad – in spite of parental opinions. Making your own decisions can be an example of youthful rebellion or a sign of growing maturity and confidence – depending on the type of relationship that we have with our parents.

I want to flip this discussion around and change focus. What if the influence in the relationship is going in a different direction? What if it is the child rather than the parent who is the influencer (to use a fashionable term)?

This is not a particularly unusual situation: many people with older parents (and we do live in what seems to be a rapidly ageing society in Scotland and the rest of the UK) will be acting in a very sound legal fashion if they set up a power of attorney to make decisions on behalf of their parents.

We all hope that our parents will remain healthy in old age and will continue to enjoy their independence, but what if the day comes when parents can no longer exercise their autonomy in decision making. The power of attorney facility in Scots Law allows children (or other relatives) to make vital decisions on behalf of their ailing parents. In short order, the power of attorney is something most of us would rather not use; it’s an insurance policy when the worst happens allowing us to make those vital decisions about parental healthcare and the management of family assets.

The case in question was Adeline Margaret Wilson v Peter Watkins & Another [2019] CSOH 44 where Lord Brodie concluded in his Opinion that there was no evidence of undue influence which would have rendered the course of dealings (the transfer of ownership of the parental home) between mother and daughter suspect or dubious in any meaningful way.

In this case, the mother (Mrs Wilson) had invited her daughter and her son-in-law (Mr Watkins) in 2012 to come and live with her. Mrs Wilson had gained title to her home following the death of her husband some years before. The Watkins sold their property in order to move in with Mrs Wilson.  The trio enjoyed a good relationship at first and, some time later (2013), Mrs Wilson transferred the ownership of the property to her daughter by way of a disposition (although she reserved a liferent to herself permitting her to remain living in the house). There appears to have been a falling out in 2015 and Mrs Wilson left the home to move in with her other daughter.

A legal challenge was lodged by Mrs Wilson at the Court of Session in order to have the disposition (the conveyance of title) set aside i.e. made voidable on the grounds that Mrs Watkins (and her husband) had exercised undue influence by persuading her to transfer the ownership of the property to them.

As Lord Brodie emphasised, the relevant judicial precedent in Scotland is Gray v Binny (1879) 7 R 332 which contains Lord Shand’s four part  test addressing the issue of undue influence.

In the essence, the key elements of this test are as follows:

(1) that there was a relationship which created a dominant and ascendant influence,

(2) that the relationship was one of confidence and trust,

(3) that a material and gratuitous benefit had been given to the
prejudice of the granter, and

(4) that the granter had been without the benefit of any independent advice at the material time.

Critically, Lord Brodie was of the view that Mrs Wilson’s case failed to satisfy elements 2-4 of the Shand criteria. Put simply, the mere existence of the relationship of parent and child did not of itself prove that undue influence had affected the transaction or legal dealings between the parties to the dispute. Mrs Wilson’s case was therefore without merit and was not permitted to proceed to trial or proof.

As a point of interest, the Watkins had submitted a counter-claim of £45,000 in respect of an allegation of unjust enrichment against Mrs Wilson had the issue of undue influence been permitted to proceed to proof. This figure represented the sum which the Watkins had used from the sale of their own house to make improvements to Mrs Wilson’s home prior to the falling out of the trio.

A link to Lord Brodie’s Opinion can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh44.pdf?sfvrsn=0

The effect of undue influence

Undue influence potentially renders a contract or legal transaction voidable so that it may be rescinded or cancelled. It is therefore a factor which can undermine the validity of contracts or legal transactions.

If rescission, however, is being sought as a remedy by one of the parties to the contract as a remedy, there must be no delay in claiming relief after the influence has ceased to have an effect. Delay in claiming relief in these circumstances may bar the claim since delay can be used as evidence of affirmation or agreement.

Undue influence can perhaps occur particularly in the following types of relationship: parent and child; and husband and wife.

There will, of course, be other relationships where a stronger party may exert a particularly negative influence on the weaker party, for example, members of a religious cult who unquestionably obey the orders of their spiritual leader (see both the English decision of Allcard v Skinner (1887) 36 Ch D 145 and the Scottish decision of Anderson v The Beacon Fellowship (1992) S.L.T. 111 which I discuss in Chapter 2 of Introductory Scots Law: Theory & Practice )(3rd Edition)).

During the 1990s, the issue of undue influence in connection with the relationship of husband and wife was given much needed judicial clarity Several cases were brought before the Scottish and English courts regarding the issue of undue influence in the marital relationship and all of these cases had remarkably similar facts, whereby the pursuers, a number of wives, alleged that they had agreed to re-mortgage the marital home so that a bank would lend money to their husbands (usually, but not always, for business purposes).

These wives claimed that they had not been given sufficient information by their husbands when they had agreed to approve what later turned out to be very risky transactions. Some of the pursuers had not sought independent legal advice before agreeing to take out the second mortgage.

Initially, the House of Lords, in Barclays Bank plc v O’Brien [1993] UKHL 6, stated that a married woman (or cohabitee) must be regarded as a special, protected class of guarantor when agreeing to guarantee her husband’s (or partner’s) debts because of the nature of the relationship. The bank should be on alert for signs of undue influence which would undermine the validity of the transaction. Their Lordships were of the opinion that the bank should be placed under a duty of care to ensure that the wife or the cohabitee had had the benefit of independent advice.

Their Lordships, however, rowed backed slightly from this position in a subsequent English case: CIBC Mortgages v Pitt [1994] 1 AC 200. In other words, the legal position on undue influence as factor which might undermine a legal transaction was evolving. In Pitt, a wife was not allowed to succeed in her claim of undue influence because the mortgage was in the names of both husband and wife and, therefore, she was benefiting from the transaction.

The decision of their Lordships in Barclays Bank plc v O’Brien was, however, not followed by the Inner House of the Court of Session in Mumford v Bank of Scotland 1996 SLT 392 where it was held that banks are not under a general duty to explain all the material circumstances of a loan to someone who has guaranteed it.

In Smith v Bank of Scotland [1997] UKHL 26, the House of Lords attempted to bring Scots law into line with English law. Lord Clyde stated that there were a number of sound reasons for attempting to harmonise the laws of Scotland and England:

“I am not persuaded that there are any social or economic considerations which would justify a difference in the law between the two jurisdictions in the particular point here under consideration. Indeed when similar transactions with similar institutions or indeed branches of the same institutions may be taking place in both countries there is a clear practical advantage in the preservation of corresponding legal provisions.”

In a further English case, Royal Bank of Scotland PLC v Ettridge (No. 2) [2001] UKHL 44 the House of Lords appeared to retreat from the position that it had originally laid out in Barclays Bank v O’Brien (1993) whereby that married women or cohabitees should be regarded as a special, protected class of guarantor. The House of Lords in Ettridge has stated that undue influence will not be automatically presumed merely because the parties to a transaction are husband and wife.

In a series of of subsequent cases (Forsyth v Royal Bank of Scotland PLC (2000) SLT 1295, Clydesdale Bank Ltd v Black (2002) SLT 764 and Royal Bank of Scotland PLC v Wilson & Ors (2003) ScotCS 396), the Inner House of the Court of Session refused to accept the automatic presumption that wives were unduly influenced by their husbands. Misrepresentations by the husband were more likely to have induced the wives to agree to become guarantors rather than any hint of undue influence. Misrepresentation, of course, a completely separate factor which can potentially render a legal transaction voidable.

In Mumford v Bank of Scotland (1996), Lord Hope made the following statement which (I think) sensibly sums up the approach taken by the Scottish courts in these types of cases between husbands and wives:

There is no indication in this passage that a presumption of undue influence can arise merely from the nature of the transaction and the fact of the relationship. What is important is the effect of that relationship in the particular case, with the result that each case must be examined upon its own facts.” [my emphasis].

In conclusion, I think that Lord Hope hit the nail on the head: the mere existence of a relationship where influence could be abused does not of itself mean that anything underhand has occurred and, therefore, each case will have to be approached on its own merits.

Copyright Seán J Crossan, 26 October 2019

Take it or leave it …

Photo by Liviu Florescu on Unsplash

Take it or leave what?

This is the stark choice faced by thousands of Asda employees (US parent company Walmart) in the UK who have been told by their employer that they must accept new contracts of employment.

The GMB Trade Union representing many of the affected employees has publicly stated its opposition to the new contracts. The Union’s argument amounts to the claim that the new terms and conditions will leave employees in a worse position.

Asda has stated that if employees don’t agree to the new contracts of employment by 2 November 2019, they will no longer have a job with the company. Effectively, the employees will be terminating their employment with the company Asda is arguing.

What’s the legal position?

Well, Asda is stating that it wishes to terminate the existing contractual agreement with the affected employees and replace it with a new contract. In this type of situation, Section 86 of the Employment Rights Act 1996 is particularly relevant.

The Act lays down statutory minimum periods of notice that the employer must give to the employees in question. These statutory minimum periods of notice apply to all those employees who have been continuously employed for four weeks or more.

Given the amount of previous Blogs of mine where I have covered the issue of an individual’s employment status, I really shouldn’t have to remind readers that the statutory notice periods apply to employees only i.e. those individuals who work under a contract of service (as per Section 230 of the Employment Rights Act 1996).

The statutory periods are detailed below:

  • One week’s notice is required to be given to those individuals who have been employed for more than four weeks but under two years
  • If the employee has between two and 12 years’ continuous service, s/he is entitled to a week’s notice for every year of service
  • If an employee has more than 12 years’ continuous employment, the maximum notice period is 12 weeks

It is important to note that these are statutory minimum periods of notice and that contracts of employment may actually lay down a requirement for longer periods of notice.

Alternatively, some employers may choose to insert a term in the contract where they can pay off the employee immediately by giving them their full entitlement to notice pay. There is no need for the employee to work whatever notice period they are entitled to receive. This type of contractual term is known as payment in lieu of notice.

Back to Asda: the affected employees are being given their statutory notice period whether that’s 1 week, 2 weeks or up to the maximum notice period of 12 weeks (depending on the individual’s length of service) as per Section 86 of the Employment Rights Act 1996.

What if some people still refuse to sign the new contracts after their statutory period of notice has expired?

There is always the possibility that certain employees (with the requisite length of service or meeting other relevant criteria e.g. protected characteristic discrimination) may be able to raise a claim for unfair dismissal in terms of the Employment Rights Act 1996.

Asda, on the other hand, may be able to justify the dismissals as potentially fair under Section 98(2) of the Employment Rights Act 1996 i.e. for some other substantial reason (the necessity for a wide-scale reorganisation in a tough retail environment).

No doubt lawyers for both Asda and the GMB are already staking out their respective legal positions for a possible battle before the Employment Tribunal.

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

Asda refuses to remove sack threat for thousands of staff over compulsory contracts http://news.sky.com/story/asda-refuses-to-remove-sack-threat-for-thousands-of-staff-over-compulsory-contracts-11845215

Postscript

It has since been reported in the Daily Mirror newspaper that one of Asda’s longer serving employees who was sacked for refusing to accept the new contract is intending to lodge an Employment Tribunal claim.

Please see the link below to this story:

https://www.mirror.co.uk/money/asda-worker-sue-supermarket-after-20857926

The Guardian also reported that the negative publicity from this story could be costly for Asda – see the link below:

https://www.theguardian.com/business/2019/nov/10/asda-faces-backlash-enforces-new-contracts

Copyright Seán J Crossan, 26 October and 12 November 2019

A hard day’s night …

Photo by Xi Wang on Unsplash

What has European Union law done for workers in the UK?

This was a question that I found myself asking when reading about very poor working conditions and lengthy hours experienced by many Chinese teenagers working in factories in order to manufacture a product purchased and used by many Western consumers.

The answer to my question is quite a lot actually when you consider the impact of the EU Working Time Directive which was transposed into UK employment law as a result of the Working Time Regulations 1998.

The Working Time Regulations 1998 guarantees most workers (there are exceptions – aren’t there always?) the right not to be forced to work more than 48 hours per week.

It’s important to note that the category of worker has a broader meaning and is not merely confined to those people who are employees (i.e. have a contract of service as per Section 230 of the Employment Rights Act 1996). Many individuals who work under a contract for services will benefit from the protection of the Directive and the Regulations.

The Regulations also compel the employer to give workers regular breaks and they also regulate the amount of hours that the worker can be forced to work in any one day.

There is special protection for younger workers regarding breaks and the maximum daily hours that they are permitted to work.

The basic rights and protections that the Regulations provide are:

  • a limit of an average of 48 hours a week which a worker can be required to work (though workers can choose to work more if they wish by signing an opt-out) (Regulation 4)
  • a limit of an average of 8 hours work in each 24 hour period which night workers can be required to work (Regulation 6)
  • a right for night workers to receive free health assessments (Regulation 7)
  • a right to 11 hours rest a day (Regulation 10)
  • a right to a day off each week (Regulation 11)
  • a right to an in-work rest break if the working day is longer than 6 hours (Regulation 12)
  • a right to 5.6 weeks (or 28 days) paid leave per year

Admittedly, many UK and EU employers will have better working conditions than the list above, but in theory the Working Time Directive provides a basic safety net or floor of rights for workers.

It is normal practice, for many employers to have a collective or work-place agreement which governs the length of in-work rest breaks if the working day is longer than six hours.

If there is no such agreement, adult workers are entitled to a 20 minute uninterrupted break which should be spent away from the work-station and such a break should not be scheduled at the end of a shift.

Younger workers are entitled to a longer, uninterrupted break of 30 minutes if their working day is longer than four and a half hours and, similarly, this break should be spent away from a person’s workstation.

What a contrast then from conditions in Chinese factories. Although China may be on course to become the World’s largest economy, the human cost of achieving this goal is very high.

No one, of course, is saying that the situation in the UK and the EU is approaching utopia for workers. The Regulations (and ultimately the Directive) can and will be ignored by rogue employers. Furthermore, in work-places where trade unions are weak or non-existent, workers may not be aware of their rights or willing to enforce them.

Despite all this, at least UK and EU workers have some sort of legal means for challenging poor working conditions and the culture of lengthy hours.

One of the big fears about the consequences of Brexit has, of course, been the possible erosion of employment protection standards by a future UK Government and Parliament that might be committed to a more free market economic philosophy of labour relations.

A link to the story about working conditions in China can be found below:

Amazon Echo devices made by Chinese teens ‘working through night’ – reports

Copyright Seán J Crossan, 23 October 2019

Holocaust denial

Photo by Alexey Soucho on Unsplash

To deny that the Holocaust ever happened (i.e. the murder of 6 million Jews – at least – by the Nazi regime) is not and never can be a protected human right or a genuinely held philosophical belief.

Such a belief (and its expression) is not protected in terms of Article 10 of the European Convention on Human Rights (which was directly implemented into Scots Law via the Scotland Act 1998 and the Human Rights Act 1998). Article 10 protects the individual’s right to freedom of expression.

Freedom of expression is not an unlimited right and certain forms of expression which constitute, for example, hate speech will not be protected by the European Convention.

The European Court of Human Rights in Strasbourg, France has just issued its ruling in this regard in the case of Pastörs v Germany ECHR 331 (2019).

Pastörs is a former member of the German regional parliament or Land for Mecklenburg-Western Pomerania. He was sat in the parliament for the far right National Democratic Party (NPD). He made an inflammatory speech on 28 January 2010 about the Holocaust using expressions such:

the so-called Holocaust is being used for political and commercial purposes”.

He also stated during the speech:

Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.”

The speech by Pastörs was particularly insensitive and offensive given that Holocaust Remembrance Day had been commemorated the day previously.

Pastörs was subsequently convicted by a German court of criminal offences i.e. “violating the memory of the dead and of the intentional defamation of the Jewish people”. This conviction was upheld on appeal.

Pastörs then lodged a case to the European Court of Human Rights on the basis that his Article 10 rights and his Article 6 rights (the right to a fair trial) had been violated by the German legal authorities.

The Court has now found that Pastörs’ legal challenge under Article 10 “was manifestly ill-founded and had to be rejected”. On the matter of the allegation that his Article 6 rights had been violated, the judges by 4 votes to 3 rejected this argument.

The judgement can be appealed to the Grand Chamber of the European Court of Human Rights.

If so, it will be interesting to see how the judges respond.

As things stand presently, this judgement confirms that freedom of expression and speech are not unlimited rights.

A link to a press release about the decision of the court can be found below:

A link to the actual judgement of the court can be found below:

Copyright Seán J Crossan, 8 October 2019

Smacking: banned!

Photo by Anna Kolosyuk on Unsplash

John Finnie, a Green Party member of the Scottish Parliament introduced a Bill (Children (Equal Protection from Assault) (Scotland) Bill) on 6 September 2018.

This Bill seeks to remove the common law defence of reasonable chastisement in Scotland which permits parents and guardians (primarily) to use smacking as a punishment in relation to children in their care.

The main objective of the Bill was expressed in its accompanying Explanatory Notes:

A person charged with assault of a child will no longer be entitled to claim that a use of physical force was justifiable on the basis that it was physical punishment administered in exercise of a parental right (or a right derived from having care or charge of a child). This will give children the same protection from assault as adults.

This week (beginning 30 September 2019), Mr Fannie’s Bill passed Stage 3 of the legislative process in the Scottish Parliament. The Bill will shortly receive the Royal Assent (a mere formality) thus becoming the Children (Equal Protection from Assault) (Scotland) Act 2019.

An info graphic showing that the Bill has now passed Stage 3 of the legislative process in the Scottish Parliament can be found below:

As a result of the passing of this Bill into law, Scotland will follow 54 other countries from around the world where the physical chastisement of children is now the criminal offence of assault.

A link to how the passing of the Bill was reported by The Guardian can be found below:

https://www.theguardian.com/uk-news/2019/oct/03/scotland-becomes-first-country-in-uk-to-ban-smacking-of-children

Copyright Seán J Crossan, 4 October 2019