I seem to be on something of a theme these last few weeks where my focus in the previous blog (and in this one) has been on agreements which are not enforceable in court.
In my last blog (Rock, paper, scissors …), I examined the historical, legal position in Scotland in relation to gambling agreements. These types of arrangements were – until the introduction of the Gambling Act 2005 – unenforceable in the Scottish courts on the basis that they fell into a category of agreement which was below the dignity of judicial scrutiny (sponsiones ludicrae).
It was with some interest then that the ongoing Covid-19 crisis should flag up another aspect of the law of contract which addresses situations where certain agreements are deemed to be unenforceable.
I am speaking of agreements where an individual volunteers to provide services, for example, to a charitable or community organisation. This type of arrangement is technically referred to as an agreement binding in honour only.
The well known UK retailer, Boots, has recently been criticised for its use of volunteers during the Covid-19 outbreak and accusations of exploitation have been flying around. The retailer placed advertisements for individuals to come forward to be trained as testers. This was all part of a UK Government initiative to encourage people to volunteer to help out during the crisis.
At first glance, there seems to be nothing wrong with what Boots is doing, but the retailer has been accused of abusing or exploiting the enthusiasm of volunteers to help out. The advertisements stated that individuals must commit to work at least 32 hours per week. This situation begins to sound less like volunteering and more about control. The Trades Union Congress and some employment lawyers have warned that Boots may be opening itself to legal action in the future. You may label an individual as a volunteer, but if you begin to treat him or her as a worker or even an employee, you may find that the relationship is not one of volunteer and recipient. In Scotland, this would an example of the doctrine of personal bar (or estoppel as English colleagues would say) in operation.
A link to the story about Boots as reported in The Independent can be found below:
When we think of volunteers, we do not often think of them as individuals who provide services to commercial companies, but rather charitable and community based organisations. Furthermore, UK National Minimum Wage legislation exempts charities from its provisions – not commercial organisations like Boots.
Such situations arise where the parties (the volunteer and the recipient of services) clearly intend not to be bound by the agreement that they have entered. There is no intention in the minds of the parties to create a legal relationship. The arrangement will last as long as the parties find it convenient. Other side can withdraw from this arrangement at any time without penalty. The party who withdraws from the arrangement may find that their honour or integrity is called into question, but in the absence of legal sanctions, this is a situation that they can probably live with.
There are downsides to being a volunteer: they are not employees within the meaning of Section 230 of the Employment Rights Act 1996 and this means that if such individuals suffer less favourable treatment in the course of their involvement with the recipient, they may have limited legal redress.
Section 83 of the Equality Act 2010 makes it very clear that if a person wishes to pursue an employment related discrimination claim, s/he must be in ‘employment under a contract of employment, a contract of apprenticeship or a contract personally to do work’. The wording of Section 83 would, therefore, exclude genuine volunteers because such individuals are providing services to recipients under an agreement binding in honour only.
In X v Mid Sussex Citizens’ Advice Bureau (CAB) and Others  UKSC 59, the UK Supreme Court affirmed the earlier decision of the English Court of Appeal in which the claimant (‘X’) had signed a ‘volunteer agreement’ to work at the Citizens’ Advice Bureau which was ‘binding in honour only’. This meant that ‘X’ did not have a contract of employment or a contract in which to perform services personally. This meant that ‘X’ was outwith the disability discrimination laws (now contained in the Equality Act 2010) and it was incompetent of her to have brought the claim. The Supreme Court, in a lengthy exposition of the effect of EU Directives, also considered whether there was an obligation placed upon EU member states to outlaw discrimination in relation to volunteers. The Supreme Court concluded that there was no such duty placed upon member states by the EU.
A link to the Supreme Court’s judgement can be found below:
An interesting story from Canada caught my attention last week and got me reminiscing about the legal status of gambling agreements in Scotland. Sponsiones ludicrae they were otherwise referred to – ludicrous promises.
The Québec Court of Appeal had to consider whether a bet placed on the outcome of a game of rock, paper, scissors was legally enforceable under that Province’s laws. At stake lay a sum of $500,000 and the loser of the bet had taken out a mortgage to cover this. Luckily for him, the Court upheld the judgement of the trial judge who had determined that the bet was not legally enforceable because it was excessive. Strictly speaking, gambling agreements can be enforced in Québec, but under that Province’s laws the bet must not apply to a game of chance; it must require skill or bodily exertion. Admittedly, Justice Chatelain, the trial judge seemed to be split on whether rock, paper, scissors was strictly a game of chance or one which required some element of skill or bodily exertion, but she was eventually swayed by the fact that the size of the bet was excessive.
A link to the story on the Sky News website can be found below:
Gambling agreements are arrangements that people enter into usually by way of placing a bet on a variety of sporting events or other frivolous activities e.g. who will be the latest evictee from ITV1’s I’m a celebrity: get me out of here!
When I started my legal career, I could confidently say to people that gambling agreements had no legal status whatsoever. They were unenforceable.
The introduction of the Gambling Act 2005, however, fundamentally reformed this area of the law of contract (more about this later in the article).
The historical position in Scotland
As Professor Laura J MacGregor of the University of Edinburgh has pointed out the theoretical objections of the Scottish judiciary were often quite nebulous when it came to deciding the grounds on which gambling agreements were unenforceable (Pacta Illicita: A History of Private Law in Scotland; Volume II edited by Reid and Zimmerman (OUP: 2000)).
True, such agreements didn’t quite fall into into the category of pacta illicita or illegal contracts because, after all, gambling was, for the most part, a perfectly legal activity. This, of course, did not prevent certain members of the judiciary (from time to time) placing such agreements in the category of illegal contracts (see Lord Moncrieff’s conclusions in Calder v Stephens (1871) 9 M 1074) in this respect).
England, on the other hand, had taken a different approach from Scotland to gambling agreements. The Unlawful Games Act 1541, passed during the reign of King Henry VIII, had to all intents and purposes made nearly all gambling activities illegal. Although this legislation seems to have been enforced rarely (or never), its influence ensured that gambling contracts had the status of pacta illicita or illegal contracts: they were void and unenforceable in the English Courts. Over the centuries, the laws regulating gambling in England would become progressively liberalised, but the Act of 1541 cast a long shadow.
The end result in both Scotland and England was very much the same: gambling agreements were unenforceable, albeit this conclusion being arrived at on the basis of different philosophical principles (sponsiones ludicrae in Scottish decisions and illegality in English cases).
Historically, of course, successive UK Government were quite hypocritical in their attitude towards gambling activities. They were quite happy to tax the punters, yet the Scottish and English courts consistently refused to enforce such agreements. Typically, the courts regarded gambling agreements as below their dignity and not worthy of judicial scrutiny. In the past, unlucky punters who were slow or refused to settle outstanding gambling debts with a bookie may have found themselves having to do a runner from hired ‘muscle’, that had been engaged by the bookie, to persuade them to pay up.
It also cut the other way: a lucky punter might be outraged to learn that a bookie had no intention of paying out if a rank outsider had romped home in that year’s Grand National horse race.
I remember reading (with much amusement), the writer, John O’Farrell’s face off with a book maker in 1997*. O’Farrell, a life long Labour Party supporter, had placed a bet that Tony Blair would lead the Party to victory at the next British General Election. When the bet was originally put down, the odds against a Labour victory were high. Needless to say that, when Mr Blair won the General Election in 1997, O’Farrell was banking on a large payout. To O’Farrell’s initial consternation, the bookie was not willing to pay out and there was no legal avenue to force him to do so. O’Farrell, who made regular TV appearances on well known shows such as Have I Got News for You, cleverly used his media status to persuade (gently) the bookie to pay out his winnings. The bookie duly complied.
*Things Can Only Get Better: Eighteen Miserable Years in the Life of a Labour Supporter, 1979–1997 (1999, Black Swan).
Arguably, the unwillingness of Scottish (and English) courts to enforce gambling agreements over the centuries seems to stem from the time in which Christianity was a much more powerful influence in society. Although, there would appear to be limited scriptural objections to such activities, many Christian societies were disapproving because it was a means of obtaining a reward without putting in the effort of hard labour. If pushed to think of condemnation of gambling in the Bible, I can really only think of the example of lots being cast by the Roman soldiers for the clothing and possessions of Jesus Christ at the crucifixion on Good Friday (Matthew 27: 35; Mark 15: 24; Luke 23: 34; and John 19: 23-24 fulfilling Psalm 22: 18).
The words of the eighteenth century Scottish judge, Lord Kames come readily to mind when considering how gambling contracts were viewed:
“[Such a contract] ought not to be converted into a serious matter, by bringing the fruits of it into a Court of Justice … Neither doth this court profess to take under its protection every covenant and agreement. Many engagements of various sorts, the fruits of idleness, are too trifling, or too ludicrous, to merit the countenance of law; a court, whether of common law or of equity, cannot preserve its dignity if it descend to such matters.”
Two examples of the way in which gambling agreements were dealt with by the Scottish courts can be seen below:
Robertson v Balfour (1938)SC 207 Robertson had entered into gambling agreements with Balfour, a bookie, to place bets on two horses, ‘Swift and True’ and ‘Scotch Horse’. Both horses won their respective races, but Robertson received a mere £10 in winnings from Balfour. In fact, Balfour owed Robertson another £33 in winnings. Robertson had agreed that he would give Balfour additional time to pay him the balance of this debt.
Held: Robertson could not enforce the outstanding debt of £33 against Balfour. This was a gambling debt and the courts would not enforce it.
Ferguson v Littlewoods Pools Ltd (1996)GWD 21-1183 the members of a football pools syndicate had won several million pounds on a coupon – or so they thought. The syndicate members were completely unaware of the fact that the agent for Littlewoods Pools had not forwarded their stake money because he had stolen it. When the theft was uncovered, the syndicate members not unnaturally demanded that Littlewoods should honour the winning coupon. Littlewoods stated that it had never received the coupon. In response, the syndicate argued that Littlewoods should be held responsible for the dishonest actions of its agent.
Held: by Lord Coulsfield in the Outer House of the Court of Session that the contract between the syndicate and Littlewoods was a gambling agreement and it was, therefore, unenforceable. Lord Coulsfield refused to order to pay out the sum which the syndicate thought it had won.
Despite the previous unwillingness of the Scottish courts to provide a remedy to a party seeking to enforce a gambling agreement, arrangements made between members of a gambling syndicate could be legally enforceable.
The Inner House of the Court of Session had reason to consider legal position as applicable to arrangements between syndicate members in Robertson v Anderson  ScotCS 312 by focusing on an area of contract law known as collateral contracts.
In Robertson, two friends who regularly attended Bingo sessions together had an arrangement that they would share equally between them any prize money that they won. One night, Anderson won over £100,000 and Robertson, her friend, expected to receive her share. Unfortunately, Anderson backtracked on their agreement and Robertson took legal action to secure her share of the winnings. Evidence was led which established that both women had an agreement to divide their winnings equally. As this case occurred before the introduction of the Gambling Act 2005, the Inner House of the Court of Session accepted that, if Anderson had attempted to sue Mecca Bingo for the winnings, she would have been unsuccessful due to the doctrine of sponsiones ludicrae. The question before the Inner House, therefore, centred around whether the agreement between Anderson and Robertson was a collateral contract and, consequently, enforceable – albeit one which was slightly tainted by association with the main gambling agreement.
Held: the Inner House started that Robertson could enforce the collateral contract that she had with Anderson. Collateral contracts are linked to another contract or agreement and give rise to a completely different set of rights and duties. Their contract related to gaming, but was not of itself a gaming agreement. The issue before the court – whether Robertson was entitled to share in Anderson’s winnings – did not involve the enforcement of a gambling agreement. This was the crucial difference between this case and Ferguson v Littlewoods’ Pools (1996) which was discussed earlier in this article. In any event, the introduction of the Gambling Act 2005, to which we shall shortly turn, now means that this discussion is largely of historical interest only.
That said, the decision of the Inner House was hardly surprising given that, as far back as the 19th Century, Lord President Normand (in Knight & Co. v Stott (1892) 19 R 959) could state:
‘There is no legal taint in betting as to infect all the contracts which are in any way related to it.’
In this way, the Court of Session could find in favour of a betting commission agent being allowed to sue successfully for sums owed to him by his principal.
TheGambling Act 2005
Such cases as the two above and the musings of Lord Kames were consigned to the dustbin of history with the passage of the Gambling Act 2005.
This legislation came into force on 1 September 2007 and, as a result, of Section 335, the doctrine of sponsiones ludicrae or ludicrous promises in relation to gambling agreements was repealed.
Section 335(1) of the Act simply states:
‘The fact that a contract relates to gambling shall not prevent its enforcement.’
This important legal reform has meant that Scottish and English courts have jurisdiction to deal with disputes between parties to a gambling agreement and to provide them with a remedy.
Section 335 of the Gambling Act was a very significant development in the law of contract that swept away the doctrine of sponsiones ludicrae. This doctrine had long been an important and well-established part of the Scots law of contract and ensured that those individuals who were party to a gambling agreement had no effective legal remedy should a dispute arise. The Gambling Act 2005 now ensures that such agreements will be regarded as legally enforceable.
Such a reform would have been unthinkable in the past because no doubt the Christian Churches would have railed against it. Given the steep decline of the influence of Christianity in modern Britain, it is perhaps not a huge surprise that the UK Parliament introduced the Act. More generally, there was also greater toleration of gambling amongst the British public possibly as a result of the introduction of the UK National Lottery (introduced by the National Lottery etc Act 1993).
The above scene, taken some years ago in Edinburgh’s Court of Session, portrays a normality that has been sadly lost to us in the legal world over the last month or so. It’s very unlikely that our two Advocates (the English equivalent would be Barristers) will be having face to face discussions for the foreseeable future.
Yes, we’re back to the ramifications of the Coronavirus (again) and lawyers, like so many other professionals, are now having to learn to rely on technology in order to deliver services to the public.
It should not have come as a great surprise, therefore, to see that Scotland’s most senior civil court has decided to proceed with a virtual appeal hearing in respect of a high profile defamation claim.
Last year, the well known Scottish independence (not to say controversial) blogger, Stuart Campbell was unhappy with the decision of a Sheriff in his defamation claim against Kezia Dugdale, the former Scottish Labour Party Leader (Campbell v Dugdale  SC EDIN 32).
Mr Campbell sought leave to appeal to the Inner House of the Court of Session – which was granted – but this was before the virus outbreak and life as we know it changing in ways that we could not have foreseen.
The old adage about justice delayed means justice denied is extremely appropriate to the times we are living in. Due to the viral outbreak, both civil and criminal proceedings in Scotland (as in so many other countries) have practically ground to a halt.
How do we deal with this?
Necessity is the mother of invention and a virtual Inner House has been created by the Scottish Courts and Tribunals Service (SCTS). Eric McQueen, SCTS Chief Executive, is confident that the three appeal judges, court staff and lawyers for both litigants will be able to work with these arrangements. Currently, this is a temporary arrangement and jury is still out as to whether virtual court hearings will become a permanent feature of the Scottish, legal landscape. The answer to this question will surely depend on how matters progress in this particular appeal.
Even our legislators in the Scottish and Westminster Parliaments are having to grapple with the opportunities (and disadvantages) that remote working represents. Yesterday, the first virtual session of the House of Commons took place at Westminster.
Strange times indeed, but needs must when the devil drives …
A link to the BBC News website about the virtual Inner House can be found below:
Look at the above image: the crime of vandalism? Almost definitely, but put it into context and a more sinister picture emerges that of sectarianism.
The building in the picture is a meeting place of the Loyal Orange Order and it has been spray painted with blatantly offensive graffiti which is diametrically opposed to everything that the Order stands for i.e. the unity of the British State, upholding Protestant religious values and support for the British monarchy. This is not just an act of vandalism: it is also a hate crime; an example of sectarianism.
The vandals, if ever caught, may also incur civil liability for their actions. Section 10 of the Equality Act 2010 covers the protected characteristic of religion and philosophical beliefs.
Sadly, these types of incidents can be all too common and both sides of the sectarian divide can be guilty of such behaviour. In January 2019, a young man admitted to a sectarian offence at Glasgow Sheriff Court. While attending an Orange Walk, Bradley White spat on a Catholic priest, Canon Tom White, who was standing at the door of St Alphonsus’ Church when the parade passed by. The incident gained a lot of media attention.
A sheriff condemned the “disgusting” assault, which took place outside a Glasgow church as an Orange walk went past.
The Scottish Parliament (which first sat in 1999) was keen to address the issue of sectarianism and finally did so by passing the much maligned Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.
The 2012 Act acknowledged that a large part of sectarian division was expressed through the medium of football with reports of disorder at stadia and offensive comments being circulated on social media.
It was also the fact that before the 2012 Act was introduced, Scots Law had an existing arsenal upon which to draw when tackling hate crimes of a sectarian nature, namely:
Common law offences
Criminal Law (Consolidation) (Scotland) Act 1995
Crime and Disorder Act 1998
Criminal Justice (Scotland) Act 2003
The 2012 legislation has since been repealed by the Scottish Parliament on the grounds that it was difficult to operate and that it had significantly restricted freedom of speech.
That said, the Scottish Government has not been prepared to leave this area alone and it instructed Lord Bracadale, a retired Senator of the College of Justice to chair an inquiry into the current state of hate crime laws in Scotland.
A link to Lord Bracadale’s recommendations can be found below:
Although, the United Kingdom is regarded as a largely secular society in that the majority of its citizens no longer profess allegiance to a particular religion, many of the its people come from a distinct religious tradition. Yet, the British State itself has not caught up with these social trends: Queen Elizabeth II is the Supreme Governor of the established Church, the Church of England; and Anglican Bishops still sit in the House of Lords deliberating on and making laws for the country.
According to the British Social Attitudes Survey of 2018, more than 50% of people in Britain stated that they had no religious beliefs.
A link to an article in The Guardian about this aspect of the Survey can be found below:
Since the events of the Protestant Reformation in 16th Century, religious and political tensions have been a hallmark of British and Irish culture and society.
England, Scotland and Wales became Protestant countries while Ireland remained overwhelmingly Roman Catholic in its religious outlook.
To proclaim yourself as a Protestant was to pledge your loyalty to the Scottish and English Crowns (there was not yet a United Kingdom, although there was a union of the two Crowns in 1603).
To assert your Catholicism was often viewed as disloyal and treasonous. It could also mean that you could be subjected to criminal sanctions e.g. fines, confiscation of property, imprisonment and even the death penalty.
The Reformation raised Ireland’s already tense and problematic relationship with England to new heights (and later Scotland when James I became King of England).
Suspicion about Roman Catholics’ loyalties were further exacerbated as a result of the Gunpowder Plot of 5 November 1605. Robert Catesby, Guy Fawkes, Thomas Percy and their co-conspirators were fanatical Roman Catholics who wanted to kill the King and his key Ministers by blowing up the State opening of Parliament. Had the Plot been successful, plans were in hand to re-establish Catholicism as the religion of the embryonic British State.
Sectarianism in Scotland
Historically, religious discrimination or sectarianism in Scotland has been a big problem and has often been referred to as ‘Scotland’s shame’. These tensions really began to surface during the Irish Potato Famine (an Gorta Mór) in the 1840s. Thousands of Irish people – who were overwhelmingly members of the Catholic Church – left their homes and settled in Scotland in search of work and to escape hunger.
This huge influx caused tensions with the local Scottish, Protestant communities. In Glasgow in 1814, there was just one priest – Reverend Andrew Scott – serving the Catholic community. Father Scott supervised the building of St Andrew’s RC Cathedral on Glasgow’s Clyde Street in order to minister to his “vast Irish flock” (James Handley: The Irish in Scotland (1964): 127).
In the years following, many Irish continued to come to Scotland (and other parts of the UK) in search of work. Caused huge social tensions and Irish people were often the target of institutionalised discrimination. In Scotland, this discrimination always had a religious dimension – better known as sectarianism.
Discrimination ran right through Scottish society: Catholics and Protestants went to different schools, attended different churches, lived in separate neighbourhoods and, significantly, supported different football teams e.g. in Glasgow, Catholics supported Celtic FC and Protestants supported Rangers FC; in Edinburgh, Catholics supported Hibernian FC while Protestants supported Heart of Midlothian FC; and in Dundee, Catholics supported Dundee United whereas Protestants supported Dundee FC.
Although religious participation in Scotland has decreased significantly – in line with trends across the UK generally – the echoes of religious traditions can still be heard. In Glasgow and west-central Scotland (where Irish immigration was most heavily concentrated), support for Celtic and Rangers Football Clubs is still a pretty good indication of a person’s ethnic and religious origins.
The Scottish Parliament and Government has tried to take a lead in combating sectarianism – not always successfully. To the credit of the Government and Parliament, they are not prepared to leave the matter and Lord Bracadale’s recommendations on updating existing Scottish hate crime laws are both welcome and timely.
In June 2019, I wrote an article which has become one of my most viewed Blogs – ‘Is it cos I is Black?’ The title was taken from Sachs Baron Cohen’s comic creation Ali G whose catchphrase it is. In that article, there was nothing actually that funny. My purpose was to highlight the shockingly high levels of racism that people of Afro-Caribbean origin still continue to experience in contemporary Britain – in spite of all the legislation (such as the Equality Act 2010) which theoretically puts people on an equal footing.
Race is a protected characteristic in terms of Sections 4 and 9 of the Equality Act 2010 and it is unlawful if a person is subjected to prohibited conduct e.g. direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).
It will, therefore, be unlawful in the UK to subject a person to a detriment because of race in relation to employment, education, training and the provision of services generally.
Bearing all of this mind, I was startled to read about a story from Guangzhou, China where a McDonald’s outlet has been severely criticised due to its staff refusing entry to African Americans. No reason has been given for this behaviour.
McDonald’s is understandably very sensitive about this issue and has apologised for the behaviour of its staff.
Had this incident occurred in the UK, you would be correct to conclude that legal action in terms of Sections 9 and 13 of the Equality Act 2010 would have been threatened. To anyone who doubts that discrimination against Black people is a thing of the past, this story will serve as a timely wake up call. Who would have thought that such things would still be going on in 2020?
A link to the story on the Sky News website can be found below:
Outrage after black people banned from McDonald’s branch in China
The story from China reminded me of an incident in the American city of Philadelphia which involved racism against two African American men who were arrested in a Starbucks outlet. The men were waiting for a friend to join them in the store when a manager called the Police because they had not purchased anything. They were taken from the store in handcuffs by the Police. The incident went viral and The ensuing publicity did Starbucks no favours at all.
A link to this story as reported by The Independent can be found below:
The title of this Blog refers to the not so distant past when discrimination was an accepted feature of life in the United Kingdom. In the 1950s and 1960s, these types of signs were routinely displayed in the windows of hotels, boarding houses and guest houses in the United Kingdom. They were blatantly racist, but completely legal.
It wasn’t just an unwillingness by White British landlords to rent rooms or properties to Afro-Caribbean and Asian families especially, ethnic minorities were often actively discouraged from purchasing properties in White neighbourhoods.
In 1968, Mahesh Upadhyaya, a young Asian immigrant to the UK, mounted legal challenge in respect of a refusal by a white British builder to sell him a house. It was the first time that anyone could do this. Mr Upadhyaya was able to do this because the Race Relations Act 1968 had just come into force. Although Mr Upadhyaya’s claim was ultimately dismissed on a technicality, the action generated a lot of publicity and greater awareness of the existence of anti-discrimination legislation amongst the British public.
A link can be found below which provides more information about Mr Upadhyaya’s story:
Even in the 1970s, you could still have a popular television sitcom called Love Thy Neighbour which dealt with the trials and tribulations of an Afro-Caribbean family moving into a white neighbourhood. If you watch it today, you can only cringe at the racist attitudes and name calling on display (see below) – you have been warned!:
This was the post-War period when Britain was suffering from acute shortages of labour and the solution adopted by successive Governments was to encourage immigration from former colonies such as Bangladesh, India, Pakistan, Sri Lanka and the British Caribbean islands.
Today, with the Equality Act 2010 firmly in place, it’s unthinkable that this type of blatant discrimination in housing could or would still take place. From time to time, however, stories are reported in the British media which highlight blatant racial discrimination in housing, but most people would now recognise that this type of behaviour is completely unlawful (see link below):
With this historical background, it was with some interest that I read recently about a number of legal actions (which had resulted in out of court settlements) where landlords had refused to let properties to certain individuals. These refusals had nothing to do with the racial backgrounds of prospective tenants, but the cases usefully demonstrate that letting properties can still be something of a legal minefield for landlords.
If the prohibition regarding Asian, Black and Irish people was an example of direct race discrimination (now in terms of Sections 9 and 13 of the Equality Act 2010), what about a prohibition which states ‘No DSS’ tenants? This term refers to individuals who are in receipt of State benefits such as Universal Credit whereby their rent is effectively paid by the Government.
At first you might be forgiven for thinking how such a prohibition could infringe equality laws, but dig a little deeper and think things over. The prohibition is a provision, criterion or practice (PCP) imposed by the landlord. Admittedly, people receiving State benefits are a hugely varied group: they will encompass men and women; White and Black and Minority Ethnic individuals; disabled and non-disabled people; heterosexual and LGBTI individuals; and people with religious/ philosophical beliefs and those with none.
This is to miss the point: could such a PCP be an example of indirect discrimination by reason of a protected characteristic in terms of Section 19 of the Equality Act 2010?
The answer seems to be yes: it would seem that more women than men are adversely affected by the prohibition ‘No DSS’ tenants. In other words, the prohibition is an example of indirect sex discrimination. Indirect discrimination can be understood in basic terms as hidden barriers which lead to unlawful, less favourable treatment.
Landlords may argue that they are not intentionally discriminating against women, but this is precisely the effect of their unwillingness to let properties to people receiving State benefits.
In 2017, the UK Supreme Court clarified the meaning of indirect discrimination in Essop v Home Office; Naeem v Secretary of State for Justice  UKSC 27:
There is no obligation for a complainant with the protected characteristic to explain why the PCP puts her at a disadvantage when compared to other groups;
Indirect discrimination does not (unlike direct discrimination) have to demonstrate necessarily a causal link between the less favourable treatment and the protected characteristic. All that is required is a causal link between the PCP and the disadvantage suffered by the complainant and her group.
Statistical evidence can be used to demonstrate a disadvantage suffered by a group, but a statistical correlation is not of itself enough to establish a causal link between the PCP and the disadvantage suffered;
The PCP may not necessarily be unlawful of itself, but it and the disadvantage suffered must be ‘but for’ causes of the disadvantage. Put simply, if the PCP was not there, the complainant and her group would not suffer the detriment.
The PCP itself does not have to disadvantage every member of the complainant’s group e.g. some women may be able to comply with it, but , critically, more women than men cannot.
The pool of individuals to be scrutinised to assess the impact of the disadvantage should include everyone to which the PCP applies e.g. all those receiving State benefits whether they are negatively affected or not.
A link to the Supreme Court’s judgement can be found below:
It looks as if the phrase ‘No DSS’ may be consigned to the history books along with the more notorious example of ‘No Blacks, No dogs, No Irish’. Speaking of dogs: a general ban on these animals might constitute another example of indirect discrimination as individuals who are visually impaired (a disability) may be less likely to be able to comply as they rely on their guide dogs.
Links to stories about the legal challenges to the PCP of ‘No DSS’ tenants can be found below on the BBC News App:
Two days on the trot and I find myself discussing dismissal in connection with former employees of the UK Government. Yesterday, I addressed the case of Sonia Khan, a former Special Adviser to two Chancellors of the Exchequer, who has a very strong case for unfair dismissal.
I now want to turn to the another prominent case of dismissal with which the UK Government has had to face recently. Last month, Sir Philip Rutnam who had been the Permanent Secretary at the UK Home Office (the Ministry of the Interior) took legal action against his former employer. The Permanent Secretary is the top civil service post in a Government Department and the post-holder would work very closely with the Secretary of State and her ministerial team.
The background to Sir Philip’s legal action against the Government is pretty sensational. He alleges that he was forced to resign from his post due to the unreasonable actions of his boss, Priti Patel MP, the Home Secretary. He is alleging that Ms Patel behaved in a bullying manner towards him and other civil servants in her Department. In short order, Sir Philip is claiming that he was constructively dismissed.
A link to the story as reported in The Guardian about Sir Philip’s legal action can be found below:
Constructive dismissal is usually described as an employee jumping ship before s/he can be pushed over the side by the employer. It is a resignation, but it is not treated as such if the employee has good grounds for terminating the contract of employment.
In terms of Section 95(1)(c) of the Employment Rights Act 1996, constructive dismissal is defined in the following terms:
‘the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.’
The key phrase here is ‘by reason of the employer’s conduct’ and this is the reason why the employee has chosen to end the employment relationship.
The employee’s right to claim constructive dismissal arises in situations where the employer’s conduct is to be regarded as a material breach of the employment contract and the employee is left with no alternative but to resign. Normally, a resignation would not be regarded as a dismissal: if an employee resigned in a fit of pique s/he would not be entitled to claim State benefits (Universal Credit).
The employer’s conduct must be so serious in order to justify the employee’s decision to resign. When an employee claims that he has been constructively dismissed, he is claiming that he was unfairly dismissed. The right of constructive dismissal would arise in situations where the employer made unauthorised deductions from wages; subjected to bullying and harassment; where the employer refused to follow the proper disciplinary or grievance procedures; or where the employee was ordered to use equipment that was clearly dangerous or sub-standard.
In the well known case of Sharp v Western Excavating Ltd  All ER 713,  ICR 221, Lord Denning laid down the essential conditions for constructive dismissal:
“An employee is entitled to treat himself as constructively dismissed if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct. He is then constructively dismissed. The employee is then entitled in those circumstances to leave at that instant without giving any notice at all or, alternatively, he may give notice and say that he is leaving at the end of the notice. But the conduct in either case must be sufficiently serious to entitle him to leave at once. …. the employee must make up his mind soon after the conduct of which he complains. If he continues for any length of time without leaving, he will be treated as having elected to affirm the contract and he will lose his right to treat himself as discharged.”
In Wishaw & District Housing Association v Moncrieff  UKEAT0066/08, the Employment Appeal Tribunal in Scotland provided helpful guidelines for Employment Tribunals when dealing with claims for constructive dismissal.
According to Lady Smith, the President of the Employment Appeal Tribunal, an Employment Tribunal dealing with unfair constructive dismissal must have regard to the following issues:
1. The specific incident which led the employee to resign from employment (the so called last straw) must be pinpointed;
2. Once this incident has been pinpointed, the Tribunal must carry out an objective assessment to judge whether it can contribute to a chain of events which taken together convey the overall impression that the employer has breached its implied duty of trust and confidence; and
3. If the incident has the potential to be viewed as breach of the duty of trust and confidence does it in fact constitute the last straw in a chain of events which would permit the affected employee to treat himself as constructively dismissed?
In constructive dismissal claims, the employee is alleging that the employer’s behaviour has effectively destroyed the employment contract by committing a material breach. However, employees must be careful: the employer’s conduct must be so serious that it allows the employee to treat herself as dismissed.
Employees should take proper legal advice before taking such a step. It could be disastrous if they get it wrong. Get it right and employees can claim unfair dismissal. Stella English, 2010 winner of the BBC’s “The Apprentice” television programme knows all about getting it wrong. Ms English resigned from employment with Lord Sugar and claimed constructive dismissal. Her action failed (see Stella English v Amshold Group Ltd Case No 3200079/12).
In Nationwide Building Society v Niblett  UKEAT/0524/08, was very clear that merely because an employer has behaved unreasonably towards an employee does not necessarily provide grounds for claiming constructive, unfair dismissal:
“It is not the law that an employee can resign without notice merely because an employer has behaved unreasonably in some respect. In the context of the implied term of trust and confidence, the employer’s conduct must be without proper and reasonable cause and must be calculated or likely to destroy or seriously damage the relationship of confidence and trust between employer and employee“.
In August 2019, a story which was widely reported in the British media, caught my attention: the abrupt dismissal of Sonia Khan as a special adviser (or ‘Spad’) with the UK Government. Ms Khan had worked for two previous Chancellors of the Exchequer (the UK Finance Minister). She was summoned to a meeting with Dominic Cummings, the UK Prime Minister’s top political adviser and sacked. Ms Khan was ordered to surrender her security passes and escorted from Downing Street by an armed Police Officer. All in all, it was a very undignified and humiliating exit for Ms Khan. Needless to say, Mr Cummings did not follow any disciplinary procedure when he made the decision to give Ms Khan her marching orders.
This decision was far from wise and Ms Khan has an extremely strong case for unfair dismissal in terms of the Employment Rights Act 1996 (she has the necessary continuous service of more than 2 years required to bring such a claim and no warnings were issued to her).
This affair led to me think about humiliating dismissals by employers and whether the affected employee could claim damages for the manner of their sacking? In other words, can the sacked employee claim that their feelings were injured as a result of the way in which they s/he was dismissed?
Links to articles about Sonia Khan’s dismissal can be found below:
When discussing discrimination claims in terms of the Equality Act 2010 (primarily), I often stress the issue of injury to feelings as an element that will be included in the calculation of a final award by an Employment Tribunal.
In several Blogs (please see the end of this article for the relevant links), I have discussed the importance of the Vento Guidelines or Scale.
In Vento v Chief Constable of West Yorkshire Police (No 2)  EWCA Civ 1871 compensation limits of £15–25,000 were laid down in situations where injury to feelings was involved in cases involving sex and race discrimination. In Sturdy v Leeds Teaching Hospitals NHS Trust ET Case 1803960/2007 14th and 15th April 2009 the Employment Tribunal decided that, since Vento had been decided in 2003, a higher rate of inflation had to be considered hence the increased award made to a victim of age discrimination.
These awards for injury or hurt feelings have now become known as the Vento Guidelines and in Da’Bell v National Society for the Prevention of Cruelty to Children(2009)EAT/0227/09, the Employment Appeal Tribunal (sitting for England and Wales) brought them into line with inflation.
Since Da’Bell, the Vento guidelines are usually updated annually in line with inflation.
The current bands or scales (from 6 April 2020) are:
♦ £900 to £9,000 for the lower band
♦ £9,000 to £27,000 for the middle band
♦ £27,000 to £45,000 for the top band
What’s the situation with unfair dismissal claims?
In Dunnachie v Kingston upon Hull City Council  EWCA Civ 84, the English Court of Appeal set the cat amongst the pigeons when it stated that a compensatory award for unfair dismissal could also include injury to an employee’s feelings. The Court of Appeal was clearly relying upon an obiter remark made by Lord Hoffman during the decision of the House of Lords in Johnson v Unisys  UKHL 13.
As far back as the decision by the short lived National Industrial Relations Court (1971-1974) in Norton Tool Co Ltd v Tewson EW Misc 1, the position was quite clear: the compensatory award in unfair dismissal claims did not include injury to an employee’s feelings in connection with the manner of the dismissal suffered by him or her.
Lord Hoffman’s obiter statement and the decision by the Court of Appeal in Dunnachie appeared to place this principle in considerable jeopardy and opened the door to what could have been a potentially significant, new development in unfair dismissal case law. Clearly, it would be advantageous for the House of Lords to provide a definitive ruling on this matter.
Subsequently, Kingston upon Hull City Council appealed against the judgement of the Court of Appeal to the House of Lords.
On Thursday 15th July 2004, the House of Lords delivered its judgement in this case ( UKHL 36). Their Lordships (Lord Hoffman amongst them – ironically) killed off any idea that an award for unfair dismissal could include injury to an employee’s feelings for the manner of the dismissal.
Compensation, therefore, in unfair dismissal claims will be concerned with the employee’s economic losses only.
The decision of the House of Lords in Dunnachie v Kingston upon Hull City Council  UKHL 36 was and remains a clear restatement of the orthodox position as set down by Sir John Donaldson all those years ago in Norton Tool Co Ltd.
As Lord Steyn, one of the Law Lords, remarked in Dunnachie:
“On the other hand, the correctness of the Norton Tool decision was not an issue in Johnson v Unisys. It is true that there were references by both sides in the oral argument to Norton Tool. But the House heard no adversarial argument exploring the correctness or otherwise of that decision. In these circumstances a definitive overruling of a decision which had stood for nearly 30 years would have been a little surprising.”
In fact, Lord Hoffman’s observation (and it was nothing more than observation we are now assured) could in no way be interpreted as an attempt to overturn a long-standing and well-established legal principle. Lord Hoffman, in Johnson v Unisys , was not “inviting the House to overrule a longstanding decision on a point of statutory construction that was not in issue and not explored in opposing arguments.” The statement by Lord Hoffman was clearly obiter dictum i.e. things said by the way which do not form part of the actual court’s judgement and that was the end of the matter.
The picture above tells a story: it is a throwback to the glory days of the Volkswagen Corporation. Like my father before me, I’m a big fan of VW cars having been the owner of quite a few of the Corporation’s models. They were all terrifically reliable cars and I have no axe to grind here. What I should say is that none of my cars had a diesel engine.
VW cars with diesel engines are significant here because, in recent times, the manufacturer deliberately marketed them as environmentally friendly. Consumers could, therefore, purchase diesel cars from VW with something amounting to a clear conscience because they were not as bad for the environment as some of the older models.
Several years ago, VW was exposed for deliberately falsifying its data about the impact of environmentally harmful emissions caused by its diesel engines. It was a huge scandal and regulatory authorities in the United States of America imposed huge fines on the Corporation. Consumers in the USA also decided to pursue class legal actions against VW on the grounds of these patently fraudulent misrepresentations.
The scandal somewhat predictably and unimaginatively gained the moniker ‘Dieselgate’ and its ramifications were soon felt in the United Kingdom (of which we shall touch upon shortly in this Blog).
Yes, Dieselgate is back in the news. The scandal of VW deliberately falsifying emissions data in respect of its diesel engine models was a topic of debate at a class action hearing before the English High Court yesterday.
In Anthony Joseph Champion Crossley & Ors v Volkswagen Aktiengesellschaft and Others  EWHC 783(QB), Mr Justice Waksman has determined that VW did insert what has become known as a ‘defeat device’ in its diesel engines. This device was rigged to ensure that when emissions tests were being carried out, a lower reading would be recorded. This would allow VW to claim that such diesel engines were much more environmentally friendly.
This is only a first, but important step, nonetheless, for purchasers and users of VW vehicles. The crux of the matter will be whether the emissions data published by VW was a material factor behind the decision of drivers to choose the manufacturer’s products. Cars are purchased for a multitude of reasons and it will be of critical importance for the consumers in this class action to demonstrate that environmental factors were a major reason for their decision to choose vehicles manufactured by the VW group.
A link to Mr Justice Waksman’s judgement and link to a BBC article about it can be found below:
The High Court rules that the German firm installed ‘defeat devices’ in vehicles to cheat emissions tests.
Categories of misrepresentation
Misrepresentation comes in three sizes:
Innocent – the false statement is honestly made
Negligent – the false statement is carelessly made
Fraudulent – there is conscious dishonesty and the false statement is deliberately made.
If you are still in any doubt, VW’s claims about its diesel engines falls very much into the category of fraudulent misrepresentations.
This takes into the area of contract law known as misrepresentation i.e. where one party makes a false statement which induces or encourages the other party to enter a legally binding agreement. The false statement is the clinching factor in that it persuades or influences someone to enter a contract.
We have to be careful, however, because false statements of themselves do not necessarily affect the validity of contracts. A party might say something that is false, but it may have absolutely no bearing on the other person’s reasons for entering the contract.
The legal consequences of misrepresentation
A misrepresentation has the potential effect of making a contract voidable i.e. it may provide grounds for cancelling the agreement.
If an innocent party brings a successful claim for misrepresentation, she has a number of remedies:
Restitutio in integrum or rescission – where the parties are returned to their pre-contractual positions – if this is possible; and/or
Damages – in Scotland, this is only possible for negligent and fraudulent misrepresentations. Under English law, the Misrepresentation Act 1967 permits an innocent party to sue for damages in respect of an innocent misrepresentation.
There is nothing to prevent an innocent party upholding the flawed agreement and suing for damages (as in the well known Scottish case of Smith v Sim 1954 SC 357 where the new owner of a pub sued the previous owner for falsely inflating the turnover figures for the business, but critically he decided to keep the property).
When discussing the consequences of misrepresentation, I often highlight a number of cases where a false or misleading statement was made but, ultimately, this had little or no bearing on the other person’s decision to enter the contract.
In Attwood v Small (1838)6 Cl & Fin 232, the owner of a mine made deliberately fraudulent statements about its production capacity. The prospective purchaser of the mine was not in the least bit swayed or influenced by these misrepresentations. Why? He decided to bring in his own surveyor to evaluate the capacity of the mine. The surveyor’s conclusions were broadly in accordance with that of the mine owner. Critically, however, it was the surveyor’s conclusions which persuaded the purchaser to enter the contract – not the original misrepresentation. The contract was not voidable and would stand. The purchaser, of course, would have a potential claim against the surveyor for negligence.
In Smith v Chadwick (1884) 9 App Cas 187, an action was brought by Smith, a steel manufacturer, against Messrs Chadwick, Adamson and Collier, who were accountants and promoters of a company. Smith claimed an amount of money as losses caused as a result of his decision to buy shares in the company, which were worth much less than what he had originally paid. The basis of Smith’s claim was that the company prospectus issued by Messers Chadwick, Adamson and Collier had contained several instances of false information. Among the misrepresentations that Smith identified was the statement that a particular Member of Parliament was a director of the company. In fact, this particular individual had withdrawn from the company the day before the prospectus was issued.
Held: the statement about the Member of Parliament – though clearly false – was not material because Smith had never heard of this individual. His decision to buy shares in the company had not been influenced in any way by this piece of information. Consequently, his action for damages was dismissed by the court.
Yesterday’s decision of the English High Court in Anthony Joseph Champion Crossley & Ors v Volkswagen Aktiengesellschaft and Others  EWHC 783(QB) is only a first, but important step for purchasers and users of VW vehicles in the UK.
The crux of the matter will be whether the emissions data published by VW was a material factor behind the decision of drivers to choose the manufacturer’s products. Cars are purchased for a multitude of reasons and it will be of critical importance for the consumers in this class action to demonstrate that environmental factors were a major reason for their decision to choose vehicles manufactured by the VW group.
In the UK, the beginning of April is always an important period for employment lawyers because the British Government and/or the Westminster Parliament typically introduce new laws which directly impact on people’s terms and conditions of employment.
There is no such thing as one document which contains all the terms of an employment contract – something that my students and members of the public have difficulty understanding at first. It is important to grasp from the outset that there are various sources of the employment contract which include, amongst other things:
The written statement of the main terms and conditions of the contract (as per Section 1 of the Employment Rights Act 1996)
Employee handbooks (e.g. available on employer’s intranet)
Employer’s policies and codes of conduct (e.g. disciplinary codes)
EU Laws, Acts of Parliament and statutory instruments (e.g. Employment Rights Act 1996, Equality Act 2010, TUPE Regulations 2006, Equal Treatment Directives)
Judicial precedent and the common law (e.g. Walker v Northumberland County Council 1 AER 737)
Today new rules come into force about the written statement of the main terms of employment. Previously, only employees were entitled to receive such a document which had to be issued by an employer within 8 weeks of the commencement of employment (as per Section 1 of the Employment Rights Act 1996). Now, an employer must issue a written statement to both employees and workers from or before day 1 of their employment or engagement.
The written statement will contain important information about the contract of employment, such as:
The employee’s name
The employer’s name
Date when employment commenced and period of continuous service
The rate of pay and how often the employee is paid
Sick pay entitlement
Pensionable service and details of employer’s pension scheme
Job title or brief JOD description
Whether the job is permanent/temporary/fixed term
The location of the employee’s place of work
The existence of collective agreements and how they affect the contract
Arrangements for working outside the UK (if relevant)
Details of disciplinary and grievance procedures
Furthermore, as a result of today’s changes to the law, the written statement must also address the following matters:
The hours and days of the week that the employee/worker must work for the employer and whether they can be changed and the mechanism for doing so
Entitlement to any paid leave
Entitlement to contractual benefits which have not already been addressed in the written statement
Probationary periods (if relevant)
Training opportunities provided by the employer
The legal status of the written agreement
The written statement is not the contract of employment itself because no single document could possibly encompass all the terms of such an agreement. There is nothing to stop the parties adopting the statement as the contract of employment, but it is important to understand that it can be varied or altered as a result of legislative changes, court decisions and collective agreements.
As of today, entitlement to leave for bereaved parents is being introduced; increases to the National Minimum and Living Wages come into force; and increases to a range of statutory payments are also taking place. With all of this going on, it would be very difficult – if not impossible – for any written statement to express the totality of the employment contract in any meaningful sense.
Failure to issue a written statement
Section 38 of the Employment Act 2002 gives employees the right to pursue an Employment Tribunal claim against an employer for failure to issue a written statement. This type of claim would usually be brought by an employee as part of another claim against the employer e.g. dismissal or discrimination claims. In such an instance, the employee would state on the Tribunal application (the ‘ET1’) that the employer had failed to issue written terms. It is always worthwhile submitting this type of claim as part of the bigger picture of the employee’s grievance because an Employment Tribunal could issue an award worth up to 4 weeks’ wages.
Any employee who is dismissed by the employer for requesting their statutory right to receive a written statement will have the right to pursue a claim for unfair dismissal in terms of the Employment Rights Act 1996.
An example of an extract taken from an ET1 form can be seen below:
The right to receive a written statement was, previously, a very important indication of a person’s employment status i.e. whether they had a contract of service in terms of Section 230 of the Employment Rights Act 1996 – as opposed to a contract for services.
In the leading House of Lords’ decision – Carmichael v National Power plc IRLR 43, two women who were engaged on casual as required contracts as tour guides at the (now demolished) Blyth Power Plant in Northumberland were not entitled to receive written statements of employment because they were engaged under a contract for services. There was no mutuality of obligation between the parties in that National Power was not obliged to offer the women work and the two women, if offered work, were not obliged to accept it. With today’s changes to the Employment Rights Act 1996, the two women in Carmichael would now be entitled to receive a written statement.
A link to the UK Government’s website which provides (free) access to a blank template for employers to generate their own written statement can be found below: