Seán Crossan's Scots Law

Love and marriage?

“Love and marriage, love and marriage
They go together like a horse and carriage
This I tell you, brother
You can’t have one without the other“

(Songwriters: James Van Heusen / Sammy Cahn

Love And Marriage lyrics © Warner/Chappell Music, Inc, Concord Music Publishing LLC)

So sang Frank Sinatra for the first time in 1955, but do love and marriage go together like a horse carriage? In 2019, some people (heterosexual couples) would beg to differ, instead preferring to opt for a civil partnership arrangement.

In Chapter 7 of Introductory Scots Law, it was noted that, according to Section 8 of the Equality Act 2010, a person has the protected characteristic of marriage and civil partnership if the person is married or is a civil partner.

In 2004, the UK Parliament passed the Civil Partnerships Act 2004, which came into force on 5 December 2005 and permitted same sex couples to enter into legally binding relationships. It should be recalled that the Scottish Parliament gave its consent to the Westminster Parliament to pass this Act for Scotland too.

This legislation also extended the same employment benefits that married couples already enjoyed to same sex couples who entered a civil partnership. In relation to the field of employment rights, the Act applies to employment and pension benefits e.g. a concessionary travel scheme and civil partners of an employee will be entitled to take advantage of these if existing provisions permit a heterosexual partner or spouse of an employee to claim these benefits.

In Bull and Another v Preddy and Another [2013] UKSC 73, UK Supreme Court Justice, Baroness Hale made the following remarks about civil partnerships:

“Civil partnership is not called marriage but in almost every other respect it is indistinguishable from the status of marriage in United Kingdom law. It was introduced so that same sex couples could voluntarily assume towards one another the same legal responsibilities, and enjoy the same legal rights, as married couples assume and enjoy. It is more than a contract. Like marriage, it is a status, in which some of the terms are prescribed by law, and which has consequences for people other than the couple themselves and for the state.”

Since the Supreme Court judgement in Bull and Another v Preddy and Another [2013], the debate has moved on and the UK Parliament passed the Marriage (Same Sex Couples) Act 2013 (which applies to England and Wales) and, in Scotland, the Scottish Parliament passed the Marriage and Civil Partnerships (Scotland) Act 2014.

Both pieces of legislation now permit same sex couples to enter civil i.e. non-religious marriages. Some Christian denominations, for example, the Church of Scotland, the Quakers (or the Society of Friends) and the Scottish Episcopal Church permit their ministers of religion to officiate at same sex marriage ceremonies, but some denominations do not (for instance, the Roman Catholic Church and the Orthodox Churches) which continue to emphasise the traditional view that a marriage is between a man and a woman.

Northern Ireland is the only region in the United Kingdom which currently does not permit same sex couples to enter marriages – although civil partnership is permitted. Readers of a previous blog entry (The ‘Gay Cake’ row) will be aware of this situation.

Heterosexual couples and civil partnerships

Interestingly, however, heterosexual couples were not permitted to enter civil partnerships as a more, modern alternative to marriage. Traditional marriage between a man and woman has been criticised on a number of grounds:

It’s seen as very patriarchal i.e. historically it unduly favours the male partner
It has religious associations which are not in keeping with the fact that the UK is (in 2019) a much more secular society
Some heterosexual couples are increasingly attracted to a more equitable and modern form of legal commitment i.e. civil partnership.

Despite these criticisms of traditional marriage, neither the UK or Scottish Governments have shown a desire to extend civil partnerships to heterosexual couples. That is until very recently and a UK Supreme Court decision has now made reform of the institution of marriage and civil partnership essential on the basis of a human rights challenge.

The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education [2016].

In Steinfeld and Keidan, an unmarried, heterosexual couple brought a claim for unlawful less favourable treatment against the UK Government on the basis that the law (contained in the Civil Partnership Act 2004) discriminated against them by forcing them to enter marriage as opposed to their preferred option of a civil partnership arrangement. The couple had strong “ideological objections” to marriage (irrespective of whether it took a religious or civil form) and argued, amongst other things, that the failure by the United Kingdom to give them the option of entering a civil partnership was a potential breach of their Article 8 rights (the right to privacy and family life) in terms of the European Convention on Human Rights.

Held: by the English High Court that the claim should be dismissed. Mrs Justice Andrews stated in very strong terms that:

“The alleged interference by the state with their right to private life by denying them the right to enter a civil partnership is even more tenuous. There is no evidence that they are subjected to humiliation, derogatory treatment, or any other lack of respect for their private lives on grounds of their heterosexual orientation by reason of the withholding of the status of civil partners from them.”

The UK and Scottish Governments had shown absolutely no inclination to extend the civil partnerships legislation to heterosexual couples. If anything both Governments had prioritised the extension of marriage to same sex couples and Mrs Justice Andrews then went on to observe that:

“In my judgment the question whether maintaining the discrimination complained of is justified must depend upon the specific context. Here, the decision is to wait and see how the extension of marriage to same-sex partners affects civil partnerships before determining what to do about them. At present there is no clear evidence as to how civil partnerships are likely to be affected by extending marriage to same-sex couples and no clear social consensus on what their future should be (as the outcome of the two consultations demonstrates). However the figures that have emerged since March 2014 indicate that there has been a sharp decline in the number of civil partnerships formed in England and Wales compared to 2013, with a corresponding increase in the number of marriages of same-sex couples. In a consultation by the Scottish Government on Review of Civil Partnership dated September 2015, the statistics relating to jurisdictions where both marriage and civil partnerships are available to same sex and opposite sex couples (the Netherlands, New Zealand, and Hawaii) indicate that the vast majority of couples prefer marriage – in New Zealand in 2014 only 0.3% of the couples opted for civil partnership. In Scotland itself, after civil marriage was introduced for same-sex partners, there were only 8 civil partnerships registered in the second quarter of 2015, a decline of 94% from the previous year.”

The English Court of Appeal

This was not the end of the matter: Steinfeld and Keidan were permitted to appeal to the English Court of Appeal against Mr Justice Andrews’ decision (Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81). The Court of Appeal strongly objected to and unanimously rejected the notion that the case did not involve a potential breach of Articles 8 of the European Convention (not to say a potential breach of Article 14: the prohibition against discrimination).

That said, however, Lord Beatson (in dismissing the couple’s claim) went on to state:

“In my view, at present, the Secretary of State’s position is objectively justified. The future of the legal status of civil partnerships is an important matter of social policy that government is entitled to consider carefully. At the hearing the Secretary of State’s approach was described as a ‘wait and see’ approach, although it would be more accurate to describe it as a ‘wait and evaluate’ approach. Whatever term is used to describe the approach, it would not have been available to the Secretary of State prior to the enactment and coming into force of the 2013 Act. This is because it would not have been possible at that time to determine how many people would continue to enter into civil partnerships or want to do so because they share the appellants’ sincere objections to marriage. The relevant start date for consideration is thus 13 March 2014 when the provisions extending marriage to same sex couples came into force.”

His colleague, Lord Justice Briggs stated:

“I can well understand the frustration which must be felt by the appellants and those different sex couples who share their view about marriage, about what they regard as the Government’s slow progress on this issue. Some couples in their position may suffer serious fiscal disadvantage if, for example, one of them dies before they can form a civil partnership. This is a factor in the proportionality balance, and because this is a case of differential treatment on the basis of sexual orientation, that balance must command anxious scrutiny. But against the background of a serious but unresolved difficulty which affects the public as a whole, and the practicable impossibility of some interim measure, such as temporarily opening civil partnership to different sex couples when the eventual decision may be to abolish it, I am unable to regard the Secretary of State’s current policy of ‘wait and evaluate’ as a disproportionate response.”

The UK Supreme Court

As one might have expected, the UK Supreme Court was to have the final say in the matter.

On 27 June 2018, the Court issued its decision: R (on the application of Steinfeld and Keidan) (Appellants) v Secretary of State for International Development (in substitution for the Home Secretary and the Education Secretary) [2018] UKSC 32.

Lord Kerr gave the leading judgement (with which his fellow Justices concurred) and allowed Steinfeld and Keidan’s appeal:

“I would allow the appeal and make a declaration that sections 1 and 3 of CPA [Civil Partnership Act 2004] (to the extent that they preclude a different sex couple from entering into a civil partnership) are incompatible with article 14 of ECHR taken in conjunction with article 8 of the Convention.”

Conclusion

There we have it: excluding heterosexual couples from the possibility of entering civil partnerships when same sex couples are now legally entitled to enter both marriage and civil partnership represents a breach of Article 8 and Article 14 of the European Convention on Human Rights. This constituted interference with heterosexuals’ right to a private and family life and discrimination on grounds of sexual orientation.

That said, we have to be careful and Lord Kerr very wisely drew attention to the consequences of declaring UK parliamentary legislation incompatible with the European Convention on Human Rights by referring to the Supreme Court’s previous decision in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2014] UKSC 38:

“An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the court’s conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, ‘This particular piece of legislation is incompatible, now it is for you to decide what to do about it.’ And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing.”

So what happens next?

In October 2018, Theresa May, the UK Prime Minister, announced that the Government would amend the Civil Partnership Act 2004 to permit heterosexual couples to enter into civil partnerships as a result of the Steinfield and Keidan decision:

https://www.bbc.co.uk/news/uk-politics-45714032

Where does this leave Scotland?

It should, of course, be remembered that the Scottish Parliament (in terms of the Sewel Convention or Legislative Consent Motion) gave its permission to the UK Parliament to pass civil partnership legislation in 2004 for Scotland (the Civil Partnership Act 2004). Family law (including marriage and civil partnerships) is, of course, a devolved matter for the Scottish Parliament in terms of the Scotland Act 1998. The Scottish Parliament was criticised at the time for not legislating in this area of important social policy.

The rather awkward situation for the Scottish Parliament (and Government) is that the legislation which is currently in force in Scotland regulating civil partnerships is incompatible with human rights. As discussed, the UK Parliament can refuse to implement the Supreme Court’s judgement; the Scottish Parliament cannot.

If, post Steinfeld and Keidan, the Scottish Government continued to allow civil partnership legislation to operate in its original form, there is a very real risk that the Scottish Ministers will be taken to court and challenged by heterosexual couples (using Steinfeld and Keidan [2018]) on human rights grounds.

The solution (for now)?

Letting the status quo prevail in Scotland is not an option because of the implications for human rights, so the Scottish Government announced a public consultation on civil partnerships in September 2018:

https://www.bbc.co.uk/news/uk-scotland-45675690

This consultation closed on 21 December 2018 and presented two options:

Abolishing the option of future civil partnerships for all; or
Permitting heterosexual couples to have the option of marriage or civil partnership.

A link to the Scottish Government’s consultation paper can be found below:

https://consult.gov.scot/family-law/the-future-of-civil-partnership-in-scotland/

Will the solution follow the English/Welsh approach or will Scotland go down a different route?

We await with interest the Scottish Government’s conclusions on the matter. Watch this space.

Copyright Seán J Crossan, February 2019

Fishy business?

There may only be a matter of weeks to Brexit (29 March 2019), but EU Law is very much alive and kicking in the UK.

Just to prove this, I came across a story on BBC Scotland’s website about an ongoing investigation by the European Commission into alleged anti-competitive practices at a number of Scottish fish farms:

Salmon farms raided as part of EU competition probe

Sites in Shetland, Stirling and Fife were visited

Copyright Seán J Crossan, February 2019

The demon drink

Photo by Sidney Sims at Unsplash

An interesting story today on the BBC’s website about how criminal cases involving alcohol as a major issue are dealt with at Glasgow Sheriff Court. Currently, two Sheriffs deal with cases where alcohol is a ‘contributory factor’ in crime. The Court has been operating for the last year and its lifespan has been extended for a further year. It will now deal with domestic abuse cases involving alcohol.

The BBC article contains some useful information about the Court’s approach to this area of criminal law and the types of sentences handed down by the Sheriffs.

A link to the article on the BBC’s website can be found below:

Glasgow’s alcohol court to deal with domestic abuse

The court in Glasgow will be able to deal with abuse cases where alcohol was a factor.

Copyright Seán J Crossan, February 2019

Vegans should be punched in the face …

Photo by Simon Matzinger at Unsplash

In a previous post (Philosophical beliefs) published on 22 January 2019, I noted that a person’s beliefs can be problematic as to whether they should be regarded as a protected characteristic in terms of Sections 4 and 10 of the Equality Act 2010.

What about veganism? The Vegan Society defines its core beliefs in the following terms:

“Veganism is a way of living which seeks to exclude, as far as is possible and practicable, all forms of exploitation of, and cruelty to, animals for food, clothing and any other purpose, and by extension, promotes the development and use of animal-free alternatives for the benefit of humans, animals and the environment. In dietary terms it denotes the practice of dispensing with all products derived wholly or partly from animals.”

Taken from: https://www.vegansociety.com/go-vegan/definition-veganism

So, it was with interest that I read about a story on Sky News where a customer of NatWest had been insulted by a call handler in relation to vegan beliefs:

NatWest call handler told customer: ‘Vegans should be punched in the face’

http://news.sky.com/story/natwest-call-handler-told-customer-vegans-should-be-punched-in-the-face-11641268

What if the call handler had uttered a homophobic, racist or sexist remark to the customer? I don’t think we would hesitate to label such remarks as unlawful discrimination and claim confidently that they would be potentially actionable in the courts.

Regular readers of this blog will already be aware that there is a case, currently before the Central London Employment Tribunal, where a vegan (Jordi Casamitjana) is claiming that his beliefs should have the status of a protected characteristic in terms of Sections 4 and 10 of the Equality Act 2010. I am certainly awaiting the Tribunal’s decision with interest.

A link to an article in The Independent about Mr Casamitjana’s case can be found below:

https://www.independent.co.uk/news/uk/home-news/vegans-discrimination-equality-act-case-tribunal-jordi-casamitjana-a8664551.html

Defining beliefs as a protected characteristic

It will be recalled, that I discuss the concept of philosophical beliefs in Chapter 7 of Introductory Scots Law. The law relating to philosophical beliefs tends to be quite fluid and is often difficult to pin down. This means that disputes about whether or not beliefs are protected under the Equality Act 2010 will often be decided on a case by case basis.

Grainger plc v Nicholson [2010] IRLR 4 is a very important case for this reason.

Tim Nicholson brought a claim against his employer, Grainger plc, a company involved in the development of residential property. Nicholson, who was Head of Sustainability at Grainger plc, alleged that he had been unfairly selected for redundancy by his employer because of his belief in the dangers of global warming and climate change. Nicholson was particularly vocal in his concerns that a company like Grainger had to promote environmental concerns as part of its business activities. The company had published environmentally friendly policies, but its alleged willingness to permit its executives to use certain types of vehicles which contributed to an increase in global warming suggested that there was contradiction between the company’s statements about its commitment to environmental issues and their actual implementation. The beliefs of Nicholson and his willingness to state these openly appeared to clash with his employer’s business objectives and this led Nicholson to conclude that he had been unfairly selected for redundancy.

Grainger plc attempted to have Mr Nicholson’s claim struck out on the grounds that his belief in environmental concerns was not a philosophical belief which was protected by UK equality laws.

Held: by the Central London Employment Tribunal at a Preliminary Hearing, that Mr Nicholson’s belief in environmental issues did fall within the meaning of a philosophical belief. This, however, was a procedural victory (albeit an important one) for Mr Nicholson who would still be in the position of having to convince a full Hearing of the Employment Tribunal that he had suffered discrimination in respect of these beliefs. On 3 November 2009, the Employment Appeal Tribunal concurred with the Tribunal’s finding that climate change could be capable of being a philosophical belief. In order to succeed in his claim, Nicholson still had to prove that his belief was “a weighty and substantial aspect of human life and behaviour”. A belief which demonstrates “a certain level of cogency, seriousness, cohesion and importance” and this belief is ultimately “worthy of respect in a democratic society, [that it] be not incompatible with human dignity and not conflict with the fundamental rights of others”.

Following the Grainger decision, an amendment was made to the law (and now contained in the Equality Act 2010), that it is unlawful to subject individuals to less favourable treatment on the grounds of their philosophical beliefs and it is immaterial whether or not these beliefs are considered similar to a religious belief. This is a highly significant development which demonstrates quite clearly that the Equality Act is not just confined to the protection of religious beliefs.

Conclusion

As I have previously noted, the trouble with the Grainger decision (and others like it) is that it has opened up a new whole area of complexity (or a can of worms) in attempting to determine when a belief is a philosophical belief worthy of legal protection.

Whether veganism is a system of beliefs deserving of the protection of the law remains to be seen. In any event, perhaps Natwest should be looking at disciplining this particular employee for the reputational damage clearly done to its brand. Whatever people think about the merits of veganism as a protected characteristic or not, most of us would be pretty appalled by the alleged treatment given out to the customer.

For students of employment law, would such conduct amount to a potentially fair reason for dismissal? Discuss.

Copyright Seán J Crossan, February 2019

Slip of the pen?

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An interesting story appeared in Saturday’s edition of The Independent (Saturday 16 February 2019) about a contractual dispute – my thanks to my friend, Jim Glass who alerted me to the matter.

Nothing unusual about contractual disputes you might retort, the courts are full of them. This particular dispute, however, got my attention because it appeared to be what is known as a ‘slip of the pen’ case.

The dispute centres around a property dispute where a London flat was sold by Islington Borough Council to one of its long term tenants, Antony Zomparelli, for £340,000 in 2014 under the right to buy scheme. The trouble, according to the Council, was that the flat should have been sold at its actual value of £700,000. Mr Zomparelli is now being pursued at before Clerkenwell and Shoreditch County Court for the outstanding £360,000 the Council claims that he owes for the property. The Georgian listed property was wrongly classified as a one bedroom home when, as the Council claims, it should have been categorised as having two bedrooms. Mr Zomparelli, on the other hand, has responded by saying that he was not aware of the mistake.

It would appear that someone has messed up (to put it mildly) and it got me thinking about the possible legal consequences of the situation.

A link to the article can be found below:

The £700,000 London flat that was sold at half price’

https://edition.independent.co.uk/editions/uk.co.independent.issue.160219/data/8782036/index.html

https://www.youtube.com/watch?v=kLEiAOrfZO0

Slip of the pen cases

In Chapter 2 of Introductory Scots Law, I discuss so called ‘slip of the pen cases’. I note that an offer can be cancelled at any time before it is accepted. In Scotland, the exception to this rule would cover a situation whereby the offeror has made a unilateral promise to potential offerees to the effect that s/he will keep the offer open for a specified period of time, for example, that the offer will remain valid until noon this Friday.

If no one has accepted the offer by noon on the Friday, the offeror is quite free to withdraw it, but not before this (self-imposed) deadline. Once it has been accepted, an offer cannot be withdrawn and this will be the case even if the offeror has made a mistake in the terms of the offer as can be seen in the following case:

Centrovincial Estates PLC v Merchant Investors Assurance (1983) Com LR 158 (CA) a firm of solicitors, acting for a property letting company, had communicated a definite offer to the effect that their clients were willing to rent offices to potential tenants for the sum of £65,000 per year. The offerees promptly accepted this offer of the tenancy at the stated rent. However, in what turned out to be an extremely costly mistake, the solicitors realised that the landlord wished to charge the tenants a sum of £126,000 for the yearly rent. The solicitors then telephoned the tenants and invited them to regard the terms of the original offer as changed to reflect the true position of their clients. Understandably quite happy with the outcome of the negotiations, the tenants refused to take this request seriously. The landlord then attempted to have the contract with their new tenants cancelled by reason of the unilateral mistake contained in the original letter of offer.

Held: by the English Court of Appeal that a binding contract had been formed. The tenants would get the benefit of the tenancy for a very favourable price. Unfortunately for the landlord, it had learned a very harsh lesson in the sense that the law did not protect it from the consequences of its own stupidity when it made an exceptionally bad bargain with the new tenants. It should be stressed that the tenants were completely unaware of the landlord’s error and that they had acted in good faith when accepting what they regarded as a very favourable offer. Had the tenants known that the landlord had made such a serious error then the case would have had a very different outcome. As something of a consolation, the landlord would have a claim for damages against the solicitors as a result of their negligence.

Awareness of the mistake

If the offeree knows that the offeror is mistaken, the contract may be void on the grounds of unilateral mistake. The following Scottish case provides a good illustration of this legal principle:

Krupp v John Menzies Ltd (1907) SC 903 stands in stark contrast to the decision of the English Court of Appeal in Centrovincial Estates (above). In Krupp, the parties had already made a verbal agreement that the employee, the manageress of the Mallaig Station Hotel, would receive a salary representing 5% of the profits of the business. When this agreement was formalised, the written contract contained a clerical error which stated that the employee’s salary was to be 20% of the profits of the business. This, of course, was a considerably more attractive salary than the employee had originally anticipated. The employee knew that this calculation in the written contract was completely in error, but it did not prevent her from attempting to enforce this much more favourable agreement in preference to the original, verbal agreement.

Held: the Court of Session permitted the employer to have the written contract changed to reflect the true contractual position which the original verbal agreement represented.

The difference between this case and the Centrovincial Estates’ decision was that the hotel manageress was not acting in good faith – she was fully aware of the clerical error in the written document. The Contract (Scotland) Act 1997 now permits additional, external sources of information (for example, verbal statements or documentary evidence) to be used in court in order to give true expression to the parties’ intentions in a written contract. Generally speaking, of course, the 1997 Act takes the position that a written document will contain all the main terms of the agreement.

Conclusion

It will be interesting to see how Mr Zomparelli fares against the Borough Council. It may come down to whether or not it can be proved that he should have been aware that the property was a two bedroom house, thus, attracting a higher value. In other words, did he act in good or bad faith when entering the contract? Watch this space.

Copyright Seán J Crossan, 18 February 2019

The problem with human rights (Part 2)

Photo by Mohamed Nohassi on Unsplash

In a previous post (The problem with human rights) published on 1 February 2019, I wrote about the problematic nature of human rights. They tend to be problematic because often the very people seeking to benefit from them have shown scant regard for other people’s human rights e.g. hardened criminals and terrorists.

An interesting example of a story which divides opinion on human rights involves Shamima Begum. In 2015, aged just 15 years old, this UK citizen left her home with two other teenage friends to travel to Syria in order to join the so called Islamic State or Daesh. Begum married a Dutch born jihadist fighter and had three children with him. She is now being held in a refugee camp by Kurdish anti-Daesh forces. Two of her older children also died while she was living in territory controlled by Daesh.

She was pregnant with her third child in the camp when she gave an interview to a journalist from The Times. On Sunday 17 February 2019, she gave birth to her third child. During the interview, Begum expressed her wishes to return to the UK to be with her family. At no time did Begum express remorse or regret concerning her decision to embrace Daesh.

Sajid Javid MP, the UK Home Secretary initially stated that he would do everything in his power to make it very difficult for Begum to return to the UK. Mr Javid was later contradicted by his Cabinet colleague, David Gauke MP, the UK Justice Secretary, who admitted that it would be nearly impossible to make Begum effectively a stateless person.

Refusing her re-entry to the UK would be a potential breach of the United Nations’ Convention on Human Rights and would probably breach the Human Rights Act 1998.

That said, the UK Government has said that it will look into the possibility of pursuing criminal charges against Begum (and others like her). Expect a file to go the Crown Prosecution Service (the English equivalent of Scotland’s Crown Office and Procurator Fiscal Service) should Begum decide to exercise her right of return to the UK.

It is estimated that approximately 800 European citizens who went to Daesh controlled territory in Iraq and Syria to join its insurgency are currently being held prisoner in Syria. What to do with these individuals now that Daesh is in the throes of losing its last bit of territory in Syria to American and British supported (mainly) Kurdish armed forces (the SDF) has become a major headache for European Governments. Doubtless there will be people amongst this number who are hardened terrorists and who represent a very real security threat to the citizens of their home countries if they are permitted to return to Europe.

The Shamima Begum story encapsulates the very essence of the problematic nature of human rights.

Links to the Begum story on the Sky and BBC news websites can be found below:

UK cannot make Islamic State bride stateless, justice secretary admits

http://news.sky.com/story/justice-sec-admits-uk-cannot-make-is-bride-stateless-11638943

IS teenage bride Shamima Begum gives birth to boy

From a refugee camp in Syria, the 19-year-old former London schoolgirl says she deserves public sympathy.

A link to a story in The Guardian about 800 European Daesh fighters captured in Syria alone can be found below:

https://www.theguardian.com/world/2019/feb/17/islamic-state-isis-baghuz-trump-calls-on-european-allies-to-take-800-fighters-captured-in-syria

Copyright Seán J Crossan, February 2019

When to exit because of Brexit?

Photo by Taras Bulba on Unsplash

An interesting story (Friday 15 February 2019) from BBC Scotland’s Chief Political correspondent, Glenn Campbell about the practicalities of Brexit.

The date for the UK to leave the European Union is 29 March 2019 and this is set down in law (the European Union (Withdrawal) Act 2018).

In any event, Mr Campbell reports that the President of the Court of Justice of the European Union does not seem to have been told by the UK Government when British judges appointed to the Court will cease their participation in the institution.

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

Brexit: Questions over UK judges on European Court of Justice

The president of European Court of Justice says he is waiting to hear from London when UK judges will stop sitting.

Copyright Seán J Crossan, February 2019

I wish I hadn’t done that …

Photo by Gem & Lauris RK on Unsplash

The employee’s duty of care

There is an implied duty that the 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.

Breach of the employee’s duty of care may be particularly relevant in situations where the employer is held liable to an innocent third party or another member of the workforce for the negligent actions of his employee. Theoretically, the employer (or more likely his insurance company) could always exercise the right to sue the employee for breach of her duty of care.

Since Morris v Ford Motor Company Ltd [1973] 2 Lloyd’s Rep. 27, the English Court of Appeal appeared to put the brakes on this practice (known as subrogation in insurance circles). The Court was of the view that it would be unfair to pursue an employee for loss or injury caused by negligent acts or omissions where there the employer had a policy of insurance in place to cover such eventualities. The UK Parliament, of course, introduced the Employers’ Liability (Compulsory Insurance) Act 1969 to address such situations.

Insurance companies appear to have put this practice into operation in that they will not pursue the employee for breach of duty should they have to pay out to the employer under an employee liability insurance policy. There are often very practical (not to say commercially sensible) reasons for this policy approach by insurance companies:

Pursuing a claim against an employee who has breached a duty of care to the employer may not make much economic sense i.e. you might obtain a successful decree for damages against an individual, but the practicalities of obtaining this sum from a low paid employee are almost nil; and
Employers may not wish to publicise certain situations because they fear the damage done to their reputation by effectively putting the wrongful acts of their employees in the spotlight of legal action.

This has meant in practice, that these types of cases tend to be few and far between, but not unheard of. Two older decisions are of interest:

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. The House of Lords permitted the insurers to bring a successful claim against the negligent employee.

Admittedly, Lister is an older decision and insurance companies have, since the Morris case, tended not to adopt this approach.

However, 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.

Held: by the English Court of Appeal that Ahmed was liable in damages (£34,640) to his employers for the losses caused by his negligence. It should be appreciated that the damages awarded in this case reflect 1970s/1980s values.

Recent developments

In a more recent decision of the English High Court: Pemberton Greenish LLP v Jane Margaret Henry [2017] EWHC 246 (QB), an insurance company failed to bring a successful claim against a consultant solicitor who had forged a client’s signature on a letter of authority in respect of a transaction for heritable property. It appeared that the solicitor had forgotten to obtain the client’s signature and panicked. The solicitor, however, was not aware that the transaction involved a fraudulent mortgage application and breach of the Money Laundering Regulations. The client was, in fact, using a fraudulent identity to obtain mortgage funding.

When the fraud was eventually uncovered, the client’s lender sued the law firm for damages. The solicitor had, of course, a duty to act of care to her employer to act with skill and care – something which now appeared she had failed to do.

The firm’s professional indemnity insurance covered this situation and the matter was concluded by payment of damages to the lender. The insurance company then attempted to bring a claim against the solicitor. However … the professional indemnity insurance policy had a clause which only permitted the insurers to pursue an employee where the claim had arisen as a result of “a dishonest, fraudulent, intentional, criminal or malicious act or omission of the employee”.

The solicitor was eventually struck off from practising by the Solicitors’ Disciplinary Tribunal (in England) for dishonestly signing the letter of authority, but crucially this act had taken place after the main fraud – the fraudulent mortgage application – was well under way. It might be said that the solicitor’s action was merely incidental to the main act i.e. the fraudulent mortgage transaction.

Admittedly, the solicitor had a duty of care to ensure that the mortgage application was above aboard, but in this sense she had acted in a negligent manner and could not be said to have committed a crime. It must also be appreciated that the solicitor did not forge the client’s signature for her own personal gain – she did so to cover up her own error. In this way, she unknowingly enabled the fraudulent transaction to proceed. Her actions were, therefore, negligent rather than criminal in nature and the law firm’s insurers failed to recover compensation from her.

In many respects, the decision of the English High Court in Pemberton Greenish LLP, just confirms what we already knew: it is very rare in practice for insurance companies to pursue employees for wrongful acts, let alone secure a favourable outcome.

That said, however, the wording of insurance policies may permit insurers to pursue claims where it can be proved that the employee acts or omissions are “dishonest, fraudulent, intentional, criminal or malicious.”

I couldn’t help thinking about cases such as Lister, Janata and Pemberton Greenish LLP when reading a recent story on the BBC website.

Peebles Media Group Ltd v Patricia Reilly (A226/17) February 2019

The case involves a situation where the employer is claiming that a (now) former employee was negligent when she transferred nearly £200,000 to an online fraudster. The employee is claiming that she believed that the order to transfer the cash had been legitimately issued by her boss. The employer, on the other hand, is alleging that the ex-employee 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 believes that its former employee was negligent in the discharge of her duties. It is also alleged that the ex-employee had no authority to make payments on behalf of the company.

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

The case is currently being heard at the Court of Session in Edinburgh and it will be interesting to hear the eventual outcome of the case.

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

Company sues worker who fell for email scam

Patricia Reilly transferred almost £200,000 after receiving emails from someone she thought was her boss.

Conclusion

Employees owe a common law duty of care to exercise skill and care in the discharge of their duties on their employers’ behalf.

Theoretically, employers have the legal right to sue their employees for losses caused by wrongful acts or omissions. It might be thought that insurance companies would be actively pressing employers to raise legal actions for damages against incompetent employees. This tends to happen less in practice than might otherwise be expected.

As we have seen, the Morris decision of the English Court of Appeal in the 1970s, discouraged insurers from pursuing claims against employees. There were also practical reasons why an employer might be reluctant to pursue matters: you might obtain an award of damages, but enforcing it against the errant employee wasn’t worth the bother; and public court proceedings might actually cause reputational damage.

In many situations, an employer might simply choose to sack an employee who had breached the duty of care on grounds of capability or conduct (as per Section 98 of the Employment Rights Act 1996). That, of course, is another matter for discussion entirely …

Hurt feelings

Photo by Luis Galvez on Unsplash

In Chapter 7 of Introductory Scots Law, I discuss the issue of injury or hurt to feelings in discrimination cases.

In certain situations, Employment Tribunals may increase any award of compensation made to a successful claimant and interest may be payable on this sum in terms the Employment Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (which were amended by the Employment Tribunals (Interest on Awards in Discrimination Cases)(Amendment) Regulations 2013). Increased awards will be much more likely in cases where the Employment Tribunal is convinced that not only has the claimant suffered discrimination, but injury to feelings.

The Scottish civil courts will also have the right to include an injury to feelings element in successful legal actions brought by the claimant. Significantly, an injury to feelings element cannot generally be factored into equal pay claims unless such an action is brought under the sex discrimination heading in Section 71 of the Equality Act 2010.

In Vento v Chief Constable of West Yorkshire Police (2002) 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 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), 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 2019) are:

♦ £900 to £8,800 for the lower band

♦ £8,800 to £26,300 for the middle band

♦ £26,300 to £44,000 for the top band

As the Equality and Human Rights Commission has noted in its guidance: “How to work out the value of a discrimination claim“, the bands give Courts and Tribunals the necessary flexibility (and discretion) to fix the appropriate amount of compensation in each case.

The application of the Vento Guidelines

How do Courts and Tribunals apply the Guidelines in practice? The Equality and Human Rights Commission (again) provides very sage advice in this regard by highlighting a Sheriff Court decision which involved unlawful less favourable treatment by a service provider.

In Purves v Joydisc Ltd [2003] SLT (Sh Ct) 64, the Sheriff awarded £1,000 in compensation to a blind man who was not permitted to bring his guide dog into a restaurant. Admittedly, the Commission does stress that this was a one-off incident and the rebuff to the victim and his guide dog was communicated via telephone – thus lessening the potential embarrassment or humiliation suffered.

The Commission then goes on to note that the Sheriff made a number of comments in relation to the case:

The discrimination will be considered less serious where it did not happen in a public place or in the presence of the disabled person (in this case he was told about it by a friend).
An apology will usually be the most effective way of mitigating the seriousness of the discrimination. In the Purves case, no explanation or apology had ever been offered.
The award is compensatory without being punitive; it bears a broad general similarity to the range of awards in personal injury cases.
It should not be so low as to diminish respect for the policy of the legislation.

The Commission does issue a number of caveats in relation to the practical consequences of the Sheriff’s judgement: ” the Purves case was specifically a disability case, and was decided before the Vento case … [but] it remains a useful tool for quantification.”

The real consequences of injury to feelings

Several months ago, I was reflecting on the reality of injury to feelings in discrimination cases when discussing the concept with a group of students. Luckily, I was able to provide a practical illustration by referring them to several reports on the BBC. These stories highlighted the experiences of Black university students who had encountered racism during their studies at various UK institutions. One student, Rufaro Chisango, talked about the impact of racism by saying that it made her feel “isolated” and “alone”. It is clear from the testimonies of individuals like Ms Chisango that victims of discrimination can suffer serious psychological damage which could lead to low self worth.

Gareth Lee, the man who took a discrimination claim all the way to the UK Supreme Court (in what became known as the “Gay Cake Row” – Lee v Ashers Baking Company Ltd [2018] UKSC 49) and lost, spoke about feeling like a “second class citizen”.

Links to the stories on the BBC website can be found below:

Black students share experience of racism
https://www.bbc.co.uk/news/av/uk-england-43371952/racism-at-university-black-students-share-their-experiences

Racist abuse made me feel alone
https://www.bbc.co.uk/news/av/uk-england-45683870/woman-racially-abused-while-at-university-speaks-out

Gareth Lee, the man who took the ‘gay cake’ case, reacts to the Supreme Court’s judgement.

Gareth Lee: ‘It made me feel like a second-class citizen’

Rugby star, Gareth Thomas speaks about his experience of hate crime

pic.twitter.com/TUSyVMLiWX
— Gareth Thomas (@gareththomas14) November 18, 2018

Conclusion

Victims of successful discrimination actions (equal pay claims are generally an exception in this regard) may be entitled to receive an element of compensation which reflects the extent of injury or hurt caused to feelings. The compensation bands or scales have become popularly known as the Vento Guidelines and are usually updated on an annual basis.

The amount of compensation available to victims of discrimination in respect of injury to feelings should adequately reflect the extent of the less favourable treatment experienced. As we have seen, a one-off incident will probably mean that the lower Vento band is applicable and more serious instances of discrimination will bring the middle and higher bands into operation.

As a parting shot, we shouldn’t forget the very real psychological damage which victims of discrimination can experience.

Copyright Seán J Crossan, 14 February and 11 April 2019

Horses for courses: the equine flu affair

Photo by Mikael Kristenson on Unsplash

Regular readers of this (relatively newish) wordpress site will be aware that blog entries dealing with employment relations tend to feature quite frequently.

In Chapter 6 of Introductory Scots Law, employment status is discussed i.e. whether someone has a contract of service (in terms of Section 230 of the Employment Rights Act 1996) or whether they are deemed to have some other legal status e.g. a freelancer or a casual worker which would mean that access to many of employment rights is simply not an option.

When teaching employment law courses to students, I often have to emphasise the distinction between contracts of service and contracts for services. The modern labour or employment market is undoubtedly complex (even fragmented). Many individuals may be working alongside one another but some will enjoy far better conditions of service because of their status as employees. For some individuals the most that they can aspire to is to be classified as a worker. It’s certainly not ideal, but it’s better than being someone who is engaged on a casual as required basis – with no employment protection.

You might wonder where on earth this leading? If you’re not a punter (seasoned or occasional), you might struggle to see how the recent outbreak of equine flu in the United Kingdom has got to do with employment status? Quite a lot actually and it just goes to prove that every day is a school day – not just for students of employment law.

When casually tuning into BBC Breakfast’s sports bulletin today (14 February 2019), I learned something to do with horse racing and employment status: jockeys are self-employed individuals who usually take up a trainer’s offer of an appointment to ride a horse in return for an agreed fee. The jockey who appeared in the short news clip said that he was very glad that racing had resumed after a 6 day health ban and that he could get back to work. In short: if he wasn’t working, he didn’t get paid.

Now, if jockeys were working under a contract of service (an employment contract), their employers would have common law duties to provide work (arguably) and/or to pay wages. If no work was available because of a temporary problem (e.g. a public health scare), an employee would still expect to receive wages.

As I am now aware, the vast majority of jockeys (as genuinely self-employed persons) do not benefit in this way. It just goes to show you what you can learn from the morning sports bulletin. Maybe I’ll pay more attention in the future. It was certainly one of those gems that I could share with the students this morning … but then if I was a punter, perhaps I would already have been aware of a jockey’s employment status.