Age discrimination?

Photo by Matteo Paganelli on Unsplash

Chapter 7 of Introductory Scots Law primarily focuses on the Equality Act 2010. Section 4 of the Act lists a number of protected characteristics:

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex;
  • sexual orientation.

To treat someone less favourably as a result of their possessing any of the above characteristics could be an act of unlawful discrimination. The exception to this would be where the less favourable treatment might be objectively justified e.g. on the grounds of national security or health and safety.

The purpose of this post is to highlight potential age discrimination. Discrimination on the grounds of a person’s age became unlawful in 2006 when the UK Goverment passed the Employment Equality (Age) Regulations 2006. This measure implemented the European Union’s Equal Treatment Framework Directive (Council Directive 2000/78/EC). The relevant law is now, of course, to be found in the Equality Act 2010. Brexit aficionados might like to note that this EU inspired piece of legislation will survive the UK’s exit from the organisation until such time as the Westminster Parliament decides to amend or repeal the Equality Act 2010. This is just one example of how EU legislation is hardwired into the domestic legal framework of the United Kingdom and demonstrates how difficult it could be to disentangle ourselves from the European Union.

Anyway, legal technicalities aside: we often think of age discrimination being an issue which affects older people in society. An interesting example of how the issue can affect younger people was reported by the BBC on Saturday 19 January 2019.

The story concerns Xander McDade (aged 25) who was elected as a Councillor in the Perth and Kinross local authority. McDade claims that he has suffered persistent age discrimination from some of his colleagues on the Council. The Chief Executive of Perth and Kinross Council has publicly stated that the Council does not tolerate discrimination and anyone who thinks that they have been less favourably treated should come forward to make their concerns known.

Perth and Kinross councillor accuses colleagues of ageism

Since being elected to office at the age of 23, Xander McDade claims he has been the butt of ageist jokes.

Just as a point of contrast, please see a link to a story from the other side of the age gap which Sky News reported in November 2018:

Woman, 88, sues NHS for age discrimination after losing job as secretary
http://news.sky.com/story/woman-88-sues-nhs-for-age-discrimination-after-losing-job-as-secretary-11563098

Copyright Seán J Crossan, 21 January 2019

Employment Status

I thought that I would begin by drawing readers to an employment law story. Those of you who are familiar with Introductory Scots Law will already know that Chapter 6 covers Employment Law. In this chapter, the topic of a person’s employment status is discussed. It’s often a difficult area for both lawyers and lay people to get their heads around. The key question can often be reduced to this: does the individual have a contract of service or a contract for services?

If you have a contract of service (or employment), you are often in much a stronger position legally speaking because you either have employment rights or the potential to access employment rights as you build up your continuity of service. Significantly, employees have the right (potentially) to claim unfair dismissal; claim a redundancy payment; be consulted about changes which their employer is going to make; access maternity and paternity rights. People working under more casual arrangements, for example, zero hours contracts or the genuinely self-employed will not be entitled to such employment rights.

The story which I wish to focus on concerns Jess Varnish, the ex-Team GB cyclist. Ms Varnish wished to pursue an Employment Tribunal claim for wrongful dismissal and sex discrimination against British Cycling and UK Sport. The legal action by Varnish has been dismissed by the Employment Tribunal on the basis that she was not an employee or even a worker of British Cycling or UK Sport. This decision, in common with many other cases over the years, demonstrates the ability of a person to claim certain legal rights depends very much on her employment status. Quite simply, Jess Varnish was never an employee and that is why her claim failed.

Please see below the link to the story on the BBC website:

Jess Varnish: Cyclist loses employment case at tribunal

Ex-GB cyclist Jess Varnish fails in her attempt to prove she was an employee of British Cycling and UK Sport at an employment tribunal.

Copyright Seán J Crossan, January 2019

Scottish Criminal Appeals

Photo by David von Diemar on Unsplash

In two of my previous blogs (Life should mean Life? published on 22 March 2019 and Commit the crime, do the time? published on 4 March 2019), I discussed the sentencing process in relation to individuals who have been convicted of criminal offences in the Scottish Courts.

In Life should mean life?, I looked at the sentencing of the teenage murderer, Aaron Campbell by Lord Matthews in the High Court of Justiciary in Glasgow. Campbell was convicted of the murder of 6 year old Alesha MacPhail. Lord Matthews imposed a prison sentence of 27 years on Campbell. This is the minimum term which Campbell must serve before he is eligible to apply for parole. It does not mean that he will be released at the end of this term.

We learned today (4 April 2019), that Campbell‘s legal team has lodged a note of appeal against his sentence. He is not appealing against his conviction.

It will be interesting to see whether the Criminal Appeal Court of the High Court of Justiciary upholds the original prison term. There is always a risk for appellants like Campbell that the Criminal Appeal Court may increase his prison term.

A link to a BBC article discussing Campbell’s appeal can be found below:

Alesha MacPhail killer Aaron Campbell lodges appeal against sentence

Aaron Campbell, 16, is challenging the 27-year jail term he received for the murder of six-year-old Alesha MacPhail.

Postscript

On Tuesday 10 September 2019, Aaron Campbell successfully appealed against the length of the life sentence (27 years) that Lord Matthews had imposed on him following his trial and conviction for murder at the High Court of Justiciary in Glasgow. His prison sentence was reduced by 3 years. This decision was made by 3 senior Scottish judges sitting in the Appeal Court of the High Court of Justiciary in Edinburgh

Please see the link below to an article on the BBC website about the story:

Alesha MacPhail killer has sentence cut by three years

Copyright Seán J Crossan, 4 April and 10 September 2019