Uncategorized – Page 5 – Seán Crossan's Scots Law

I’m a climate activist, don’t fire me!

Today seems to be something of a red letter day for the Blog with regard to the issue of protected philosophical beliefs in terms of the Equality Act 2010.

We have already heard the news that Jordi Casamitjana has won the part of his Employment Tribunal claim that his ethical veganism is a philosophical belief in terms of Sections 4 and 10 of the 2010 Act (see Casamitjana v League Against Cruel Sports [2020]).

It was some interest that another news item popped up today concerning allegations that Amazon stands accused of threatening to dismiss those of its employees who become involved in climate protests. I would hazard a guess that Amazon is making a statement of intent that it may dismiss employees who perhaps break the law when they are involved in climate protests such as those organised by Extinction Rebellion and other similarly minded groups.

Criminal acts by employees committed outside the workplace could be regarded as gross misconduct in terms of Section 98 of the Employment Rights Act 1996. In other words, such behaviour by employees could result in the employer suffering reputational damage and, consequently, any dismissal for misconduct could be potentially fair. That said, employers should always carry out the proper disciplinary procedures when contemplating dismissal as the ultimate sanction for employee misbehaviour.

The real gripe – according to Amazon Employees for Climate Justice – is that the tech company allegedly objects to employees speaking critically about its failure to be more environmentally responsible.

Yet, there are potential dangers here for Amazon in the UK. In Grainger plc v Nicholson (2010) IRLR 4, the Employment Appeal Tribunal established that an employee’s belief in climate change could constitute discrimination on the grounds of a philosophical belief.

So, we could have situation where Amazon employees who are taking part in quite peaceful and lawful climate change protests end up being dismissed. This would open up the possibility that employees of Amazon UK might have the right to bring claims for direct discrimination (Section 13: Equality Act 2010) in respect of their philosophical beliefs (Sections 4 and 10 of the Act).

In the USA, there could be even more serious legal implications – infringing the right to free speech which is protected under the Constitution.

Perhaps Amazon needs to go back to the drawing board …

A link to an article on the BBC News App can be found below:

Amazon ‘threatens to fire’ climate change activists

The company said employees “may receive a notification” from HR if rules were “not being followed”.

Related Blog article:

https://seancrossansscotslaw.com/2019/06/05/im-a-political-activist-dont-sack-me/

Copyright Seán J Crossan, 3 January 2020

Going mainstream?

Photo by Free To Use Sounds on Unsplash

While we await the judgement of the Employment Tribunal in relation to the case of Casamitjana v League Against Cruel Sports, it’s interesting to note that veganism as a lifestyle choice seems to be on the rise.

Whether the Employment Tribunal will recognise Jordi Casamitjana’s ethical standpoint as a philosophical belief in terms of Sections 4, 10 and 13 of the Equality Act 2010 remains to be seen. Watch this space.

In the meantime, the BBC has produced an interesting article on the rise of veganism which can be found on its News App:

Veganism: Why are vegan diets on the rise?

More and more people are buying plant-powered products. What’s behind the rise?

Related Blog Articles:

https://seancrossansscotslaw.com/2019/05/12/veganism-discrimination/

https://seancrossansscotslaw.com/2019/04/08/the-trouble-with-veganism/

https://seancrossansscotslaw.com/2019/03/26/veganism-is-human-cruelty/

https://seancrossansscotslaw.com/2019/04/21/the-vegan-athlete/

https://seancrossansscotslaw.com/2019/04/01/the-shameful-secret-the-vegan-butcher/

https://seancrossansscotslaw.com/2019/02/19/vegans-should-be-punched-in-the-face/

https://seancrossansscotslaw.com/2019/01/22/philosophical-beliefs/

Say what you want?

Photo by Denin Lawley on Unsplash

There is no such thing as the absolute right to free speech or free expression – not even in the United States of America. The US Supreme Court formulated the Miller Test as far back as 1973 which defined boundaries as to what forms of expression may constitute obscenity (see Miller v California 413 US 15 (1973)).

This country is (certainly) not America when it comes to the issue of freedom of speech. Although Articles 9 and 10 of the European Convention on Human Rights (as implemented by the Scotland and Human Rights Acts 1998) do protect the individual’s right to freedom of conscience, thought etc and expression, there is recognition that the State may have good reason to restrict these rights (known as the margin of appreciation).

In an earlier Blog, I discussed the fact that the European Court of Human Rights ruled that denial of the Holocaust is not a belief which should be protected by law.

See:

Holocaust denial

https://seancrossansscotslaw.com/2019/10/08/holocaust-denial/

A famous example of the margin of appreciation being utilised (and approved by the European Court of Human Rights) in this country was the decision of Wingrove v UK [1996]. Here the film, Visions of Ecstasy, used highly sexualised imagery in its depiction of religious themes. Such a presentation would have been highly offensive to devout Roman Catholics (and a breach of the then, very strict blasphemy laws). Consequently, the British Board of Film Classification (the UK censor) refused to allow the film to be released. In this case, it was felt that someone’s artistic freedom of expression would cause grave offence to another group of people.

Wingrove is a really a moot point these days given that, in 2008, the UK reformed its blasphemy laws and the uncut version of Visions of Ecstasy was given a theatrical release (with an 18 certificate) in 2012. Yet it remains an interesting example of the tension between diametrically opposed viewpoints and how the State can be forced to mediate between these.

A link to the Wingrove judgement can be found below:

https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22wingrove%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-58080%22]}

Gender Critical Speech

I was reminded about freedom of speech only this week when an Employment Tribunal put clear limits on an individual’s right to say certain things. The individual lost the case, but its aftermath has stirred up a hornet’s nest of recriminations, with even JK Rowling weighing in to criticise the Employment Tribunal.

The case in question was Forstater v 1) CGD Europe 2) Centre for Global Development 3) Masood Ahmed Case No 2200909/2019 18 December 2019. It involved Maya Forstater who was engaged by the Centre for Global Development (a Think Tank) as a Visiting Fellow from January 2015 to 31 December 2018. Ms Forstater is a professional researcher and writer on public policy, tax and business. She provided services in this respect to the Think Tank. She is also had an active social media presence on Twitter.

Ms Forstater had issued a number of tweets about UK Government policy in which she questioned the right of trans females to call themselves women. Several of her colleagues complained about these and stated that they were ‘transphobic’ in nature. When her contract with the Think Tank was not renewed, she took the view that this decision had been motivated by her statements on Twitter. She, therefore, took the view that she was being subjected to direct discrimination by reason of her beliefs in terms of Sections 4, 10 and 13 of the Equality Act 2010. Furthermore, Forstater argued that her rights to freedom of thought, conscience and religion and expression (Articles 9 and 10 of the European Convention) had been breached.

As Employment Judge Tayler noted:

“When questioned during live evidence the Claimant [Ms Forstater] stated that biological males cannot be women. She considers that if a trans woman says she is a woman that is untrue, even if she has a Gender Recognition Certificate. On the totality of the Claimant’s evidence it was clear that she considers there are two sexes, male and female, there is no spectrum in sex and there are no circumstances whatsoever in which a person can change from one sex to another, or to being of neither sex. She would generally seek to be polite to trans persons and would usually seek to respect their choice of pronoun but would not feel bound to; mainly if a trans person who was not assigned female at birth was in a “woman’s space”, but also more generally. If a person has a Gender Recognition Certificate this would not alter the Claimant’s position. The Claimant made it clear that her view is that the words man and woman describe a person’s sex and are immutable. A person is either one or the other, there is nothing in between and it is impossible to change form one sex to the other.”

In dismissing Ms Forstater’s claim, Employment Judge Tayler stated:

“However, I consider that the Claimant’s view, in its absolutist nature, is incompatible with human dignity and fundamental rights of others. She goes so far as to deny the right of a person with a Gender Recognition Certificate to be the sex to which they have transitioned. I do not accept the Claimant’s contention that the Gender Recognition Act produces a mere legal fiction. It provides a right, based on the assessment of the various interrelated convention rights, for a person to transition, in certain circumstances, and thereafter to be treated for all purposes as the being of the sex to which they have transitioned.”

A link to the Forstater judgement can be found below:

https://doc-08-3g-docs.googleusercontent.com/docs/securesc/ha0ro937gcuc7l7deffksulhg5h7mbp1/ro6ahkv1c745m9ad7rvct412fk1uvhmp/1576958400000/06325118964551598628/*/12P9zf82TicPs2cCxlTnm0TrNFDD8Gaz5?e=download

In arriving at his judgement, Employment Judge Tayler was influenced by an earlier decision which defined the scope of a person’s beliefs and whether they ought to be protected.

Mr Justice Burton sitting alone in the Employment Appeal Tribunal in the case of Grainger v Nicolson Appeal No. UKEAT/0219/09 [2009] formulated some pretty clear guidelines about what constitutes a belief capable of protection under the UK equality laws. His Honour stated that for a belief to be capable of protection, it must satisfy the following requirements:

It must be genuinely held.
It must be a belief and not … an opinion or viewpoint based on the present state of information available.
It must be a belief as to a weighty and substantial aspect of human life and behaviour.
It must attain a certain level of cogency, seriousness, cohesion and importance.
It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others.

We may not have heard the last of Ms Forstater who may well be given to leave to appeal against Employment Judge Tayler’s judgement.

A link to the decision in Grainger v Nicolson can be found below:

http://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html

A link to a report about the Forstater decision can be found below on the BBC News website:

Maya Forstater: Woman sacked over trans tweets loses tribunal

Maya Forstater lost her job after she questioned government plans to let people declare their own gender.

Author’s note:

Since the original article was published in December 2019, Ms Forstater has successfully appealed to the Employment Appeal Tribunal (EAT) and overturned the original decision of the Employment Tribunal.

Please see a link to the EAT’s judgement in this respect which was issued on 10 June 2021:

https://assets.publishing.service.gov.uk/media/60c1cce1d3bf7f4bd9814e39/Maya_Forstater_v_CGD_Europe_and_others_UKEAT0105_20_JOJ.pdf

Copyright Seán J Crossan, 21 December 2019

Employee or not?

Photo by Olivier Collet on Unsplash

We’re nearly at the year’s end and, funnily enough, I find myself returning to where I started this Blog: a person’s employment status.

The person in question is our friend, Jess Varnish, the former British and Olympic cycling champion who took British Cycling and Sport UK to an Employment Tribunal alleging wrongful dismissal. Ms Varnish lost that particular round, but she has now been given the right to appeal against the original Tribunal decision.

Wrongful dismissal (which is distinct from unfair dismissal) occurs when a person has their employment contract terminated and such a termination is a breach of the contract. Such situations commonly occur where an

Only individuals with a contract of employment as defined by Section 230(1) of the Employment Rights Act 1996 can bring a claim for wrongful dismissal against the employer. Such individuals are said to have a contract of service as opposed to a contract for services.

If you are an employee you either have entitlement to certain legal rights and protections – or the ability to acquire these e.g. the right not to be unfairly and/or wrongfully dismissed; the right to a redundancy payment; the right to request flexible working patterns etc.

If, however, you are engaged (not employed) by an organisation, you enjoy none of these rights or the ability to acquire them. This situation applies to an increasing number of people who are engaged on contracts for services.

In January 2019, the Employment Tribunal ruled that Ms Varnish was not an employee and, therefore, she did not have a contract of service with either British Cycling or UK Sport.

I am definitely going to keep an eye on developments in this case

A link to a story about the Jess Varnish legal action can be found below on the BBC News site:

Jess Varnish wins right to appeal in British Cycling case

Former Great Britain cyclist Jess Varnish has won the right to an appeal hearing in her employment case against British Cycling.

Hitman (or woman) for hire

Photo by Dimitri Houtteman on Unsplash

Implausible or unlikely as the above Blog title may sound, you can apparently hire people to carry out murders on your behalf – quite easily.

How did I find this out? Simply by chancing upon another Blog article on WordPress. This article exposed one chilling aspect of modern life: the reality of the so called ‘dark web’. This is an unregulated part of the internet where all sorts of criminal activities (arms dealing, drugs, human trafficking, prostitution – and even murder for hire) can be accessed.

The article in question (see the link below) discussed a situation where someone arranged the murder (or a ‘hit’) on their stepmother for $5:

https://wordpress.com/read/feeds/22973954/posts/2522423606

We often think of contract killings as being something straight out of Hollywood. After all, one of the most popular movies currently being aired on Netflix is ‘The Irishman‘ (directed by Martin Scorsese) which depicts the life and times of Frank Sheeran, an enforcer for the Mafia. In one of the scenes, an enquiry is put to Sheeran by Russell Bufalino, a Mafia boss: ‘I hear you paint houses?’ Painting houses has nothing to do with interior decoration, but rather that Sheeran is a gun for hire.

Going back a few years, a terrific (and underrated) Hollywood movie starring Brad Pitt and the late, great James Gandolfini (‘Killing Them Softly’) had scenes with the main character, Jackie Cogan (played by Pitt) negotiating contract killings with a Mafia lawyer – as if this was a normal business transaction (in certain worlds/sub-cultures it will be).

It so happened this morning, that I was discussing the law of contract with a group of students. In particular, I had planned to talk to them about void contracts. The above article was, therefore, something of a fortunate discovery in that arranging the murder of another person (for a fee) is a really graphic example of a void agreement. In other words, such an agreement is a criminal conspiracy.

I also have to add that I was pretty shocked at the very low value placed on the potential act of taking of another human life.

If an agreement (or part of it) is deemed to be void, it can have no legal force – it is as if it never existed. Neither party to the agreement can enforce it. So, if the person who hired the killer was unhappy that the murder had not in fact been carried out or had been botched in some way, would they have any legal redress?

I hope you answered absolutely not! The law would be a complete ass if participants in criminal conspiracies were able to enforce their agreements in the civil courts on the basis of contract law. Such a situation would positively encourage people to enter into all sorts of questionable activities.

It reminds me of the case recounted to my first year law class by Professor John Huntley many years ago (Everet v Williams [1725] 2 Pothier on Obligations 3 9 LQR 197). He told the story of the two highway robbers who agreed to split the proceeds of their crimes on a 50/50 basis. One of the robbers made off with the stash leaving his partner in crime with nothing. This unfortunate individual took legal action to recover his share. As Professor Huntley concluded, when the judge discovered the background to the legal action, he was very fair: he ordered that the two highwaymen should be put to death by hanging.

That is the moral of the story: if you get involved in a criminal conspiracy, the law does not offer you any protection if you are cheated by your partners in crime. Furthermore, silence (on your part) is probably a sensible option because to attempt to recover your share of the ill gotten gains would amount to a confession of guilt on your part. Don’t be naive and think you could be vague about the background to the legal action; the judge will almost certainly want to know why you are raising an action to recover a debt or items of property.

An interesting story, which appeared on the Sky News website (20 October 2022), about the consequences of hiring a contract killer can be found be clicking on the link below:

https://news.sky.com/story/gunned-down-at-the-drive-in-son-ordered-hit-on-his-own-mob-associate-dad-12725170

Copyright Seán J Crossan, 18 December 2019 & 20 October 2022

Decriminalisation?

Photo by Seán J Crossan

Don’t worry: I renewed my TV licence before the deadline.

Failure to obtain a TV licence (unless you benefit from an exemption) is a criminal offence and could be punishable by a fine of up to £1,000.

Currently, the Communications Act 2003 and the Communications (TV Licensing) Regulations 2004 contains the relevant law.

So, it was with some interest that I read that the UK Government intends to review the law and decriminalisation may be an option. This of course, would mean that it would no longer be a criminal offence for failure to obtain a TV licence.

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

https://news.sky.com/story/government-reviewing-decriminalising-non-payment-of-bbc-licence-fee-11888375

When beginning my introductory lectures about law and legal obligations, I often remark to my students that legal principles or rules (especially in relation to criminal law) are a reflection of society’s values.

Well, guess what? Society can move on or evolve. The law is a living, breathing entity. There is nothing fixed about it.

This week, a new UK Parliament will convene at Westminster following last Thursday‘s General Election. It is a widely accepted constitutional principle that no Parliament can bind its successors. The Prime Minister has already signalled his intention to take a very different path from the Parliament that sat between June 2017 and December 2019.

When discussing the possible decriminalisation with regard to non-payment of the TV licence fee, one of my students asked what would happen to those individuals who had previously been convicted of this offence?

Too bad; tough, I responded. That is the law and if you break it, you pay the penalty. So, a final word of warning: don’t be tempted to flout the law in the hope that decriminalisation will happen any time soon.

Commit the crime, pay the fine.

Copyright Seán J Crossan, 16 December 2019

Post-traumatic stress or psychiatric injuries

Photo by Thư Anh on Unsplash

Author’s note: Ms Weddle appealed to the Sheriff Civil Appeal Court where the original decision of the Sheriff (who ruled against her claim) was upheld. The decision was issued on 7 June 2021 and does not contain any surprises.

A link to the Appeal Court’s decision, Danielle Weddle v Glasgow City Council [2021] SAC (Civ) 17 PIC-PN2982-17, can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2021-sac-(civ)-017.pdf?sfvrsn=0

It’s hard to believe that, this month, it will be 5 years since the event infamously dubbed the Glasgow Bin Lorry Crash occurred.

To those readers unfamiliar with the events that happened on 22 December 2014, Harry Clarke, an employee of Glasgow City Council, was responsible for causing the deaths of 6 people and injuring 15 others. Mr Clarke was employed by the City Council as the driver of a bin lorry (garbage truck for our North American readers). He lost control of the vehicle while driving it in Glasgow City Centre. It later emerged that Mr Clarke had a history of illness which caused him to suffer from blackouts. He had not revealed this fact to his employer. Mr Clarke suffered one of those episodes on the day of the accident.

A link to an article which appeared in The Guardian the day after the accident can be found below:

https://www.theguardian.com/uk-news/2014/dec/23/glasgow-bin-lorry-crash-three-victims-family-named

Clearly, the Council was potentially (vicariously) liable for the actions of its employee to the primary victims in delict (tort), but what about bystanders who witnessed the tragic turn of events and who had no personal or family links with the primary victims (the dead and the injured)?

I’ll discuss this incident later in the Blog in relation to a recent decision of the All Scotland Personal Injury Sheriff Court.

The law of delict and PTSD

Scots law (and indeed the English law) recognises two kinds of victim who can develop psychiatric injuries as a result of the defender’s negligence in these types of situation:

Primary victims
Secondary victims

Primary victims are those individuals who have been directly involved in an accident caused by the defender’s negligence. They may have suffered both physical and psychiatric injuries or their injuries may be limited purely to psychiatric damage.

Secondary victims, on the other hand, are not directly involved in the initial accident that occurred as a result of the defender’s negligence. In fact, they may not have witnessed the occurrence of the accident at all.

This category of victim often appears on the scene during the aftermath of the accident as in Bourhill v Young [1943] AC 92 when the important events had already taken place. Alternatively, secondary victims might be related or connected to the primary victims and as such it would be reasonably foreseeable that they would suffer some sort of distress. Whether or not secondary victims can claim compensation for their psychiatric injuries is, however, not always a straightforward matter.

Primary victims have traditionally had a more straightforward task when it comes to convincing the courts that they should be awarded damages for the psychiatric injuries that they have suffered.

As we shall see, strict rules are now in place that will determine whether a secondary victim should succeed in her claim for damages against the defender.

The obstacles facing secondary victims

The ability of secondary victims to bring successful claims for psychiatric injury has been at the heart of some high profile judicial decisions over the last four decades.

In McLoughlin v O’Brian [1983] 1 AC 410, the pursuer’s husband and three children were all victims of a serious car accident which had been caused as a result of the defender’s negligence. One of the pursuer’s daughters was killed in the accident and the surviving family members were all seriously injured. It is important to realise that the pursuer was not physically present at the scene of the accident and she was not informed about the accident until several hours after it had occurred.

When the pursuer reached the hospital she saw for herself the graphic and serious nature of the injuries that her family had suffered. This all proved too much for the pursuer to deal with and she developed a long-running and serious psychiatric condition which she claimed had been caused by the defender’s negligence.

The difficulty for the pursuer was that she was clearly a secondary victim and the law relating to psychiatric injuries was quite clear – only primary victims could be granted compensation for the psychiatric injuries that they had suffered as a result of the defender’s negligence. The House of Lords, therefore, had to consider the issue of whether the pursuer was someone that the defender could reasonably foresee would suffer harm as a result of his negligence. Furthermore, some of the Law Lords felt reasonable foreseeability of harm was not enough and the strength of the pursuer’s relationship with the primary victims had to be examined.

Held: by the House of Lords that the psychiatric injuries suffered by the pursuer were reasonably foreseeable. The ties of love and affection were clearly a crucial feature of her relationship with the primary victims. She was, therefore, entitled to compensation from the defender.

McLoughlin v O’Brian was not without its critics and it did not entirely settle the question of whether secondary victims were entitled to sue for psychiatric injury. Lord Bridge suggested that reasonable foreseeability of the pursuer suffering harm should be enough to establish liability. Lords Wilberforce and Edmund-Davies felt that reasonable foreseeability was only one part of the story. The strength of the pursuer’s relationship with the primary victims was a very important factor in determining whether any claim for psychiatric injury should be allowed.

The decision of Alcock and Others v Chief Constable of the Yorkshire Police [1992] 1 AC 310 that the approach that Lords Wilberforce and Edmund-Davies had taken in McLoughlin was confirmed as correct.

Alcock was regarded as a special case because the pursuers represented a group of individuals who had a broad range of relationships with the primary victims. The pursuers included parents, children, siblings, grandparents, in-laws, fiancés and friends. All these individuals were claiming that they had suffered psychiatric shock as a result of the harm that had been suffered by the primary victims to whom they were connected. The House of Lords was left with the task of deciding which of these secondary victims was entitled to claim compensation for psychiatric injuries.

The facts of Alcock and Others v Chief Constable of the Yorkshire Police [1992] are detailed below:

The events surrounding this case relate to the English FA Cup semi-final which was being contested by Liverpool and Nottingham Forest. The match was being played at the neutral venue of Hillsborough (the Sheffield Wednesday ground) and it was a sellout. The game was also being televised live on the BBC – although individuals who were caught up in the crush could not be identified from the live television pictures. The South Yorkshire Police force which was responsible for policing the match was accused of negligence for the way in which it operated its crowd control procedures. The game had to be stopped after six minutes of play because too many fans had been allowed into a section of the terraces and many of these individuals were crushed against the fencing which prevented access to the pitch.

Ninety-five people died as a result of the incident and at least another 400 had to be treated in hospital for the injuries that they received. The police paid compensation to the primary victims of the incident i.e. those had suffered physical and psychiatric injuries as a result of being directly involved in the accident. This compensation payment, however, did not settle the claims of a group of secondary victims, consisting mainly of relatives of the primary victims. These secondary victims, of course, had not been directly caught up in the incident. Many had, admittedly, been present at Hillsborough and had witnessed the terrible scenes from a distance. Others in the group of secondary victims had witnessed the incident on live television, had been told about the incident by third parties or had gone directly to the ground after hearing the information in order to search for family and friends who were missing presumed injured or dead.

The pursuers attempted to rely upon Lord Bridge’s test in McLoughlin v O’Brian that their psychiatric injuries were reasonably foreseeable and, therefore, they could claim compensation. The House of Lords felt that although the secondary victims had suffered as a result of the incident at Hillsborough, stricter rules had to apply to their claims than was the case with the primary victims. The starting point of any secondary victim’s claim for damages the psychiatric injuries must be reasonably foreseeable. This is only the first hurdle placed in the pursuer’s way. There are a further three tests that pursuers must satisfy:

Do they belong to a group of individuals that the courts should recognise are capable of suffering psychiatric injury as a result of the defender’s negligence?
How close to the accident was the pursuer in terms of time and space?
How was the psychiatric injury caused?

In practice, many pursuers (who are classified as secondary victims) will find the above tests very difficult to satisfy in order to succeed in their claims.

Held: by the House of Lords that all the pursuers failed to meet one of the three tests listed above and, therefore, the claims must fail.

Primary or secondary victim?

What happens, however, when the status of the victim is disputed: in other words, do they fall into the category of a primary or secondary victim?

This was precisely the issue with which the All Scotland Personal Injury Sheriff Court in Edinburgh had to grapple.

The case in question is that of Danielle Weddle v Glasgow City Council [2019] SC EDIN 42. Miss Weddle, a student, witnessed the events of the Bin Lorry Accident. She was present in the City’s George Square as Harry Clarke’s vehicle (the bin lorry) lost control colliding into pedestrians and damaging street furniture. Prior to the incident, Weddle had been standing on the pavement looking at her mobile phone. She looked up when she heard the noise of the collision and saw the damage caused.

When she left George Square shortly afterwards, Weddle came across a dead body (an earlier victim of Harry Clarke’s negligence). She thought that the victim’s intestines were hanging out of the abdomen. Needless to say, she was traumatised by this scene.

She tried to telephone her mother, but was unsuccessful at first. She managed to contact her father and told him she had seen a horrible accident. Mr Weddle then contacted his wife and got her to phone their daughter; which she duly did. Mrs Weddle wanted her daughter to go to hospital. Weddle instead decided to go home by bus. When she got off the bus, she went into a pharmacy in the Cardonald area of Glasgow to seek some help. Mrs Wade, the pharmacist who attended to her, recognised that she was in deep shock. The pharmacist immediately arranged for a GP to come and see Weddle. She was ‘distraught’; given diazepam; and was eventually allowed to go home.

Weddle claimed that as a result of what she had witnessed, she was not able to return to university after the Christmas holidays; she suffered ‘nightmares’ and ‘psychological symptoms such as intrusive thoughts, flashbacks, anxiety and depression’. Her GP subsequently referred her to counselling and she had to take anti-depressants.

To this day, there is no doubt that Weddle has been affected by the events that she witnessed in Glasgow City Centre. She is a victim of post-traumatic stress as a result of what she experienced in Glasgow City Centre on 22 December 2019.

The key question before the All Scotland Personal Injury Sheriff Court was whether Weddle fell into the category of a primary or a secondary victim?

Held: by Sheriff Kenneth J McGowan ‘… that the defender’s employee (Harry Clarke) would not have reasonably foreseen that his driving at the relevant time would have given rise to the risk of physical injury to the pursuer (Weddle); and in any event, that the pursuer did not in fact suffer fear of physical injury to herself at the relevant time; that accordingly, the pursuer does not qualify as a primary victim and she cannot therefore obtain damages for any psychiatric injury suffered by her.‘

A link to Sheriff McGowan’s decision can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019scedin42.pdf?sfvrsn=0

A link to a report on the BBC website about the outcome of the Weddle case can be found below:

Student refused damages over Glasgow bin lorry crash

The woman suffers from PTSD after witnessing part of the crash which resulted in the death of six people in December 2014.

Copyright Seán J Crossan, 10 December 2019

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

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 v 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.

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.