Pay day?

Photo by Jordan Rowland on Unsplash

One of the most important common law duties that an employer has under the contract of employment is to pay wages to the employee.

This duty, of course, is contingent upon the employee carrying out his or her side of the bargain i.e. performing their contractual duties.

The right to be paid fully and on time is a basic right of any employee. Failure by employers to pay wages (wholly or partially) or to delay payment is a serious contractual breach.

Historically, employers could exploit employees by paying them in vouchers or other commodities. Often, these vouchers could be exchanged only in the factory shop. This led Parliament to pass the Truck Acts to prevent such abuses.

Sections 13-27 of the Employment Rights Act 1996 (which replaced the Wages Act 1986) give employees some very important rights as regards the payment of wages.

The National Minimum Wage Act 1998 (and the associated statutory instruments) and the Equality Act 2010 also contain important provisions about wages and other contractual benefits.

There are a number of key issues regarding the payment of wages:

  • All employees are entitled to an individual written pay statement (whether a hard or electronic copy)
  • The written pay statement must contain certain information
  • Pay slips/statements must be given on or before the pay date
  • Fixed pay deductions must be shown with detailed amounts and reasons for the deductions e.g. Tax, pensions and national insurance
  • Part time workers must get same rate as full time workers (on a pro rata basis)
  • Most workers entitled to be paid the National Minimum Wage or the National Minimum Living Wage (if over age 25) (NMW)
  • Some workers under age 19 may be entitled to the apprentice rate

Most workers (please note not just employees) are entitled to receive the NMW i.e. over school leaving age. NMW rates are reviewed each year by the Low Pay Commission and changes are usually announced from 1 April each year.

It is a criminal offence not to pay workers the NMW and they can also take (civil) legal action before an Employment Tribunal (or Industrial Tribunal in Northern Ireland) in order to assert this important statutory right.

There are certain individuals who are not entitled to receive the NMW:

  • Members of the Armed Forces
  • Genuinely self-employed persons
  • Prisoners
  • Volunteers
  • Students doing work placements as part of their studies
  • Workers on certain training schemes
  • Members of religious communities
  • Share fishermen

Pay deductions?

Can be lawful when made by employers …

… but in certain, limited circumstances only.

When exactly are deductions from pay lawful?:

  • Required or authorised by legislation (e.g. income tax or national insurance deductions);
  • It is authorised by the worker’s contract – provided the worker has been given a written copy of the relevant terms or a written explanation of them before it is made;
  • The consent of the worker has been obtained in writing before deduction is made.

Extra protection exists for individuals working in the retail sector making it illegal for employers to deduct more than 10% from the gross amount of any payment of wages (except the final payment on termination of employment).

Employees can take a claim to an Employment Tribunal for unpaid wages or unauthorised deductions from wages. They must do so within 3 months (minus 1 day) from the date that wages should have been paid or, if the deduction is an ongoing one, the time limit runs from the date of the last relevant deduction.

An example of a claim for unpaid wages can be seen below:

Riyad Mahrez and wife ordered to pay former nanny

Equal Pay

Regular readers of the Blog will be aware of the provisions of the Equality Act 2010 in relation to pay and contractual benefits. It will amount to unlawful sex discrimination if an employer pays a female worker less than her male comparator if they are doing:

  • Like work
  • Work of equal value
  • Work rated equivalent

Sick Pay

Some employees may be entitled to receive pay from the employer while absent from work due to ill health e.g. 6 months’ full pay & then 6 months’ half pay. An example of this can be seen below:

Statutory Sick Pay (SSP)

This is relevant in situations where employees are not entitled to receive contractual sick pay. Pre (and probably post Coronavirus crisis) it was payable from the 4th day of sickness absence only. Since the outbreak of the virus, statutory sick pay can paid from the first day of absence for those who either are infected with the virus or are self-isolating.

Contractual sick pay is often much more generous than SSP

2020: £95.85 per week from 6 April (compared to £94.25 SSP in 2019) which is payable for up to 28 weeks.

To be eligible for SSP, the claimant must be an employee earning at least £120 (before tax) per week.

Employees wishing to claim SSP submit a claim in writing (if requested) to their employer who may set a deadline for claims. If the employee doesn’t qualify for SSP, s/he may be eligible for Employment and Support Allowance.

Holiday Pay

As per the Working Time Regulations 1998 (as amended), workers entitled to 5.6 weeks paid holiday entitlement (usually translates into 28 days) per year (Bank and public holidays can be included in this figure).

Some workers do far better in terms of holiday entitlement e.g. teachers and lecturers.

Part-time workers get holiday leave on a pro rata basis: a worker works 3 days a week will have their entitlement calculated by multiplying 3 by 5.6 which comes to 16.8 days of annual paid leave.

Employers usually nominate a date in the year when accrual of holiday pay/entitlement begins e.g. 1 September to 31st August each year. If employees leave during the holiday year, their accrued holiday pay will be part of any final payment they receive.

Holiday entitlement means that workers have the right to:

  • get paid for leave that they build up (‘accrue’) in respect of holiday entitlement during maternity, paternity and adoption leave
  • build up holiday entitlement while off work sick
  • choose to take holiday(s) instead of sick leave.

Guarantee payments

Lay-offs & short-time working

Employers can ask you to stay at home or take unpaid leave (lay-offs/short time working) if there’s not enough work for you as an alternative to making redundancies. There should be a clause in the contract of employment addressing such a contingency.

Employees are entitled to guarantee pay during lay-off or short-time working. The maximum which can be paid is £30 a day for 5 days in any 3-month period – so a maximum of £150 can be paid to the employee in question.

If the employee usually earn less than £30 a day, s/he will get their normal daily rate. Part-time employees will be paid on a pro rata basis.

How long can employees be laid-off/placed on short-time working?

There’s no limit for how long employees can be laid-off or put on short-time. They could apply for redundancy and claim redundancy pay if the lay-off/short-term working period has been:

  • 4 weeks in a row
  • 6 weeks in a 13-week period

Eligibility for statutory lay-off pay

To be eligible, employees must:

  • have been employed continuously for 1 month (includes part-time workers)
  • reasonably make sure you’re available for work
  • not refuse any reasonable alternative work (including work not in the contract)
  • Not have been laid-off because of industrial action
  • Employer may have their own guarantee pay scheme
  • It can’t be less than the statutory arrangements.
  • If you get employer’s payments, you don’t get statutory pay in addition to this
  • Failure to receive guarantee payments can give rise to Employment Tribunal claims.

This is an extremely relevant issue with Coronavirus, but many employers are choosing to take advantage of the UK Government’s Furlough Scheme whereby the State meets 80% of the cost of an employee’s wages because the business is prevented from trading.

Redundancy payments

If an employee is being made redundant, s/he may be entitled to receive a statutory redundancy payment. To be eligible for such a payment, employees must have been employed continuously for more than 2 years.

The current weekly pay used to calculate redundancy payments is £525.

Employees will receive:

  • half a week’s pay for each full year that they were employed under 22 years old
  • one week’s pay for each full year they were employed between 22 and 40 years old
  • one and half week’s pay for each full year they were employed from age 41 or older

Redundancy payments are capped at £525 a week (£508 if you were made redundant before 6 April 2019).

Please find below a link which helps employees facing redundancy to calculate their redundancy payment:

https://www.gov.uk/calculate-your-redundancy-pay

Family friendly payments

Employers also have to be mindful of the following issues:

  • Paternity pay
  • Maternity Pay
  • Shared Parental Pay
  • Maternity Allowance
  • Adoption Pay
  • Bereavement Pay

Employers can easily keep up to date with the statutory rates for family friendly payments by using the link below on the UK Government’s website:

https://www.gov.uk/maternity-paternity-calculator

What happens if the employer becomes insolvent and goes into liquidation?

Ultimately, the State will pay employees their wages, redundancy pay, holiday pay and unpaid commission that they would have been owed. This why the UK Government maintains a social security fund supported by national insurance contributions.

An example of a UK business forced into liquidation can be seen below:

Patisserie Valerie: Redundant staff ‘not receiving final pay’

Up to 900 workers lost their jobs when administrators closed 70 of the cafe chain’s outlets. Disclaimer:

Conclusion

Payment of wages is one of the most important duties that an employer must fulfil. It is also an area which is highly regulated by law, for example:

  • The common law
  • The Employment Rights Act 1996
  • The Working Time Regulations 1998
  • The National Minimum Wage Act 1998
  • The Equality Act 2010
  • Family friendly legislation e.g. adoption, bereavement, maternity, paternity

Failure by an employer to pay an employee (and workers) their wages and other entitlements can lead to the possibility of claims being submitted to an Employment Tribunal. The basic advice to employers is make sure you stay on top of this important area of employment law because it changes on a regular basis and ignorance of the law is no excuse.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/30/2020-same-old-sexism-yes-equal-pay-again/

https://seancrossansscotslaw.com/2020/01/10/new-year-same-old-story/

https://seancrossansscotslaw.com/2019/05/13/inequality-in-the-uk/

https://seancrossansscotslaw.com/2019/03/31/the-gender-pay-gap/

https://seancrossansscotslaw.com/2019/04/05/the-gender-pay-gap-part-2/

https://seancrossansscotslaw.com/2019/06/26/ouch/

https://seancrossansscotslaw.com/2019/06/20/sexism-in-the-uk/

Thttps://seancrossansscotslaw.com/2019/04/30/paternity-leave/

Copyright Seán J Crossan, 5 April 2020

Happy Holidays?

Photo by David Lezcano on Unsplash

It’s the first day of the Spring/Easter Holidays and most of us will probably be feeling a little underwhelmed at the prospect (we get to spend another two weeks at home).

We should, however, be grateful when we remember the countless numbers of our fellow workers who have to go into work in order to keep this country running – National Health Service and Emergency Service personnel, care staff, supermarket and grocery staff, delivery workers, the armed forces, utilities workers etc during the Coronavirus outbreak. I am sure that I will have overlooked someone or a group of essential workers and for that sincere apologies.

With all of the above people in mind, when do they get to take holidays? I am sure that, for many of them, holidays have been put firmly on the back burner.

This is why the UK Government has sensibly amended the Working Time Regulations 1998 by introducing the Working Time (Coronavirus) (Amendment) Regulations 2020 (WTCA Regulations). This will allow workers, who are continuing to serve the community in its hour of need, to carry over their holiday entitlement to the following year.

Ordinarily, the Working Time Regulations 1998 permits ‘workers’ (a category broader than employees) to take 28 days’ (or 5.6 weeks’) paid holiday per year. This is the basic, statutory entitlement and other workers may be more fortunate in that they receive longer periods of paid holiday entitlement e.g. teachers and lecturers.

Each organisation will designate the relevant period when holidays are to be taken by workers. The minimum or basic entitlement can include public or bank holidays such as Good Friday, Easter Monday, May Day, Christmas Day, New Year’s Day. This period of leave should be addressed in workers’ contracts.

The basic entitlement must normally be taken in the agreed leave year e.g. from 1 January to 31 December or 1st September to 31st August. I say normally because workers are not usually permitted to carry over holidays into the next leave year – they must take them in the current leave year. I suppose you could say rather crudely: use them or lose them, but thankfully not this year. This is the least we can do for people who are putting their health and, quite possibly, their lives on the line for us.

A link to an article in The Independent about the amendment to the Working Time Regulations can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.280320/data/9430706/index.html

Copyright Seán J Crossan, 4 April 2020

The death of the independent contractor defence? Not quite …

Photo by Hush Naidoo on Unsplash

Today, the UK Supreme Court has decided, in a unanimous judgement, that Barclays Bank PLC is not liable for the wrongful and criminal actions of an independent contractor (a medical doctor) that it engaged over a number of decades – see Barclays Bank PLC v Various Claimants [2020] UKSC 13. This judgement overturns the Court of Appeal’s judgement of 2018 (see Barclays Bank PLC v Various Claimants [2018] EWCA Civ 1670).

The facts of the case

Barclays Bank hired a doctor, Gordon Bates, to carry out medical examinations of members of its staff and applicants for employment at the Bank. These examinations were carried out by Bates at his consulting room located at his private address. The doctor was accused of sexually assaulting 126 people during examinations carried out between 1968 and 1984. These incidents did not come to light until much later.

By this time, the doctor had died and there was no question of his professional indemnity insurance or his estate paying out compensation to his victims. Barclays Bank stated that the doctor was not an employee – he was an independent medical practitioner paid by the Bank to carry out a service as and when required.

Barclays Bank argued that on these grounds they should not be held liable for the doctor’s wrongful actions. In fact, the victims themselves did not claim that Bates was an employee of Barclays, but significantly they did argue that its relationship with the doctor was “akin to employment” and that the delictual act was sufficiently closely connected to the employment or quasi-employment. Bates was under the control of Barclays Bank; by using the services of Bates, the Bank had created the risk of the victims being exposed to his wrongful acts; The medical examinations were carried out on behalf of the Bank; and the Bank had the resources to compensate the victims who now had no practical means of obtaining damages from Bates.

The Court of Appeal

The case was first heard in the English High Court. The High Court decided that Barclays should be held liable for the doctor’s actions. They were benefiting from the service that he was providing and they had the financial resources to compensate the victims (this for organisations using independent contractors will be the really controversial and worrying part of the judgement). 

Barclays appealed to the English Court of Appeal, but the decision of the High Court was upheld.

At paragraph 41 of the judgement, Lord Justice Irwin stated:

The law of vicarious liability has been developed – has been “on the move” – in recent times, most notably in the five critical decisions of: E v English Province of Our Lady of Charity; the Catholic Child Welfare Society; Cox v Ministry of Justice; Mohamud v WM Morrison Supermarkets; and Armes v Nottinghamshire County Council.

Significantly, Lord Justice Irwin went on to say (at paragraph 45):

“Moreover, it seems clear to me that, adopting the approach of the Supreme Court, there will indeed be cases of independent contractors where vicarious liability will be established. Changes in the structures of employment, and of contracts for the provisions of services, are widespread. Operations intrinsic to a business enterprise are routinely performed by independent contractors, over long periods, accompanied by precise obligations and high levels of control. Such patterns are evident in widely different fields of enterprise, from construction, to manufacture, to the services sector.”

The UK Supreme Court

Baroness Hale, who gave the unanimous decision of the Court, noted that the doctrine of vicarious liability is “on the move” and “how far that move can take it.”

Baroness Hale summarised the position of Barclays Bank in the following terms:

As Lord Bridge of Harwich stated in D & F Estates Ltd v Church Comrs [1989] AC 177, 208 (echoing the words of Widgery LJ in Salsbury v Woodland [1970] 1 QB 324, 336), “It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work”. The Bank argues that, although recent decisions have expanded the categories of relationship which can give rise to vicarious liability beyond a contract of employment, they have not so expanded it as to destroy this trite proposition of law, which has been with us since at least the decision of Baron Parke in Quarman v Burnett (1840) 6 M & W 499, 151 ER 509.

Her ladyship went on to set out the legal argument of the victims of Doctor Bates’ wrongful actions:

The claimants, on the other hand, argue that the recent Supreme Court cases of Christian Brothers, Cox v Ministry of Justice [2016] UKSC 10; [2016] AC 660, and Armes v Nottinghamshire County Council [2017] UKSC 60; [2018] AC 355, have replaced that trite proposition with a more nuanced multi-factorial approach in which a range of incidents are considered in deciding whether it is “fair, just and reasonable” to impose vicarious liability upon this person for the torts of another person who is not his employee. That was the approach adopted both by the trial judge and the Court of Appeal in this case.’

In finding that Barclays Bank was not vicariously liable for Doctor Bates’ wrongful actions, Baroness Hale highlighted the following factors which had clearly influenced the Supreme Court:

  • Doctor Bates was never employed by Barclays
  • He was not paid a retainer by Barclays
  • He could refuse referrals from Barclays
  • He maintained his own medical practice and medical insurance (though whether his policy of indemnity would cover such wrongful acts was a moot point)
  • If he was an employee, he was employed by the local health authority on a part-time basis – and certainly not by Barclays
  • He was, therefore, an independent contractor in business on his own account as regards his relationship with Barclays
  • Barclays was just another client of Doctor Bates

Links to the judgement and the Court’s press release can be found below:

http://www.bailii.org/uk/cases/UKSC/2020/13.html

https://www.supremecourt.uk/cases/docs/uksc-2018-0164-press-summary.pdf

Related Blog article:

https://r-login.wordpress.com/remote-login.php?action=auth&host=seancrossansscotslaw.com&id=155841657&back=https%3A%2F%2Fseancrossansscotslaw.com%2F2019%2F01%2F25%2Fthe-extension-of-vicarious-liability-the-demise-of-the-independent-contractor-defence%2F&h=

Copyright Seán J Crossan, 3 April 2020

The Battle of Balaclava?

Photo by nick olson on Unsplash

Balaclavas can be very useful things to have to hand – when the weather is very cold or you’re discussing the Crimean War (1853-1856) from where the term for the garment originates in the United Kingdom (circa 1881, according to the historian and cleric, Richard Rutt). During the Crimean War, British soldiers wore the garment to cope with the sub-zero temperatures that they experienced during the winter months of the Campaign.

Today, the garments are still incredibly popular with cyclists and winter sports’ enthusiasts (I confess: I have two for cycling during the winter months and they’re great!).

Despite, the historical associations with the British Army’s involvement in the Crimean War, it’s not always advisable to use the Balaclava as a teaching aid for History classes – especially DIY History classes.

McClean, an Irish footballer playing for the English Championship side, Stoke City FC, has recently found this out to his cost.

In a bizarre social media post (on Instagram), McClean put a picture of himself wearing a Balaclava as he was talking to two children. What was the point of this strange exercise? McClean claims that he was teaching the children about history, but others have seen this as an endorsement of paramilitary groups – particularly the Provisional IRA.

Today’s history lesson by James McClean

There was a public backlash and McClean was fined by this Club. The player is something of a controversial figure to many as he routinely refuses to have a poppy printed on his football jersey in the run-up to Remembrance Day commemorations each November in the United Kingdom.

https://www.independent.co.uk/sport/football/premier-league/poppy-james-mcclean-matic-guardiola-klopp-remembrance-sunday-armistice-day-a9194266.html

McClean hails from the City of Derry in the North of Ireland which will be forever associated with the events of ‘Bloody Sunday’ on 30 January 1972. On that day, 13 innocent Civil Rights marchers were shot and killed without justification by members of the Parachute Regiment – as per the conclusions of Lord Saville’s Report (2010) which contradicted Lord Widgery’s findings published in April 1972. The Saville Inquiry took 12.5 years and cost the British taxpayer £191.5 million – the longest and most expensive inquiry ever in the United Kingdom (figures obtained from The Spectator).

The previous Widgery Report was seen by many in the Republican and Nationalist community as a cover-up and a whitewash in that it absolved the Parachute Regiment of any wrong-doing for the deaths. Inevitably, the Report fuelled a long lasting sense of grievance within this community. McClean grew up on Derry’s Creggan Estate – not far from St Mary’s Church where many of the funerals of the ‘Bloody Sunday’ victims took place.

We often forget that footballers can be employees i.e. have a contract of service with their Clubs as per Section 230 of the Employment Rights Act 1996. McClean is fortunate that he has retained his post; other, less famous employees might not have been so lucky.

Section 98(4) of the Employment Rights Act 1996 permits an employer to dismiss an employee (potentially) fairly by reason of his/her conduct (with the proviso, of course, that the employer follows proper procedures in line with current ACAS standards).

McClean might initially have protested that the social media post was done while he was outside working hours. Regular readers of this Blog will be well aware that this type of excuse is extremely naive at best. Yes, employees do have a right to privacy, in terms of the European Convention on Human Rights, but this is never absolute – especially if an employer can argue that the behaviour of an individual employed by him or her has caused reputational damage to the organisation.

Employers do have a part to play here: they have a duty to have clear and consistent guidelines on employee social media use within and outwith the work-place. It should go without saying (but I’ll say it anyway) that the employer should make sure that employees are aware of the existence of such guidelines and have actually read them.

The misbehaviour or misconduct of employees which takes place outside working hours can have a really serious reputational impact on your employer. Individuals, like McClean, with high profiles in the community should be aware of this. It won’t be the last time that we read about someone who is deemed to be a role model – a teacher or a sporting personality – who misbehaves outside work and pays the price for this type of behaviour.

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

https://news.sky.com/story/james-mcclean-irish-footballer-fined-for-balaclava-childrens-history-lesson-post-11964664

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/02/youre-never-off-duty/

https://seancrossansscotslaw.com/2019/12/08/different-standards/

https://seancrossansscotslaw.com/2019/12/03/the-limits-of-privacy/

https://seancrossansscotslaw.com/2019/09/03/facebook-folly/

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

https://seancrossansscotslaw.com/2019/05/20/social-media-and-dismissal/

https://seancrossansscotslaw.com/2019/04/11/social-media-misuse/

https://seancrossansscotslaw.com/2019/04/09/drunk-and-disorderly/

https://seancrossansscotslaw.com/2019/02/07/it-happened-outside-work-or-its-my-private-life/

Copyright Seán J Crossan, 2 April 2020

Gender recognition reform postponed

Photo by Sharon McCutcheon on Unsplash

The Coronavirus continues to create chaos – legally speaking.

The latest casualty is the Scottish Government’s promised review of the Gender Recognition Act 2004. This exercise will now be postponed for the foreseeable future.

On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004.

This exercise was always dogged by a lack of clarity on the Government’s part. Shirley-Anne Sommerville MSP, the Government Minister who had responsibility for this issue had publicly admitted that there was still a need to build a “maximum consensus” before things become clearer. Code for sorting out divisions over the issue within the ranks of the Scottish National Party.

A link to information about the proposed Bill can be found below:

https://www.gov.scot/publications/review-of-gender-recognition-act-2004/

The Gender Recognition Act 2004

In April 2005, the Gender Recognition Act 2004 came into force. This Act, which received the Royal Assent on 1 July 2004, currently provides people who have undergone gender reassignment procedures with legal recognition in relation to their newly acquired gender identity. The legislation applies across the United Kingdom and was passed by the Westminster Parliament.

Legal recognition of a person’s decision to reassign the sex or gender they have had from birth will follow from the issuing of a full gender recognition certificate by a Gender Recognition Panel. The individual applying for such a certificate must be able to satisfy certain criteria – the most important criterion will centre around the submission of medical evidence of physiological changes by the applicant.

Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment. The Equality Act 2010, of course, also bolsters legal protection for transgender people.

The Scottish Government’s proposed Gender Recognition Bill

The proposed Bill was controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:

https://www.scottishlegal.com/article/joanna-cherry-qc-signs-letter-opposing-rush-to-reform-gender-law

https://www.bbc.co.uk/news/uk-scotland-scotland-politics-48037152

Under the Scottish Government’s proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.

Under the proposed legislation, an individual wishing to undergo gender reassignment would have to have met the following criteria:

  • A statutory declaration to the effect that they have decided to change gender or sex;
  • The declaration will contain a statement that the individual has been living as a man or a woman for at a minimum of 3 months;
  • The individual will have to undertake a compulsory or mandatory period of 3 months to reflect on the decision to undergo gender reassignment (no gender recognition certificate will be issued until this period has been completed).

Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government’s approach to transgender rights generally.

A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:

https://www.holyrood.com/articles/news/scottish-trans-policy-detrimental-women-and-girls

For the time being all of the above is going to be purely academic.

Related Blog articles:

https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/

https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/

https://seancrossansscotslaw.com/2019/06/25/gender-neutral/

https://seancrossansscotslaw.com/2020/02/18/safe-spaces/

https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/

https://seancrossansscotslaw.com/2020/02/16/say-what-you-want-continued/

Copyright Seán J Crossan, 1 April 2020

What a difference a day makes …

Photo by Jim Wilson on Unsplash

Only yesterday, I was discussing provisions of the Coronavirus (Scotland) Bill which would have led to the suspension of trial by jury for indictable offences in Scotland.

It seems that the Scottish Government has had second thoughts about this issue and has decided not to proceed with these proposals – although Humza Yousaf MSP, Cabinet Secretary for Justice has said that the Government will revisit the matter sometime in the next month.

This is the essential problem with emergency legislation – the unexpected consequences which arise in such situations due to the fact that there is a lack of effective oversight or supervision.

Were the Government’s proposals a sinister attempt to undermine trial by jury or were they simply a necessary evil determined by social distancing requirements during the COVID-19 crisis?

Whatever reason you prefer, the Scottish Government has found itself at the centre of a backlash from the usual suspects – the Scottish Criminal Bar Association – and from its own supporters e.g. Joanna Cherry QC MP (see below):

This has led to a situation which no Government (irrespective of its political colours) likes to be in: having to make an embarrassing U-turn.

In normal times, of course, the Government would have circulated its proposals in a discussion paper well in advance of any draft legislation being published. In this way, various interested parties, such as the Faculty of Advocates and the Law Society of Scotland, could have made their views known and, for the Government, this allows a useful measurement of the temperature to be taken.

The Law Society of Scotland, which represents solicitors, bemoaned the lack of consultation by the Scottish Government (see below):

This is why emergency legislation should always contain a clause or a provision which allows it to be regularly reviewed by Parliament. In this way, very simple questions can be posed:

  • Is the law working properly?
  • Is it still necessary?

Please find below a link to the story about this development on the BBC website:

www.bbc.co.uk/news/uk-scotland-scotland-politics-52111412

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/31/trial-without-jury/

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 1 April 2020

Trial without jury?

Screen capture by Seán J Crossan

I seem to be on a theme today due to COVID-19.

The latest legal development is the Scottish Government’s attempt to deal with the crisis by passing an emergency Bill through the Scottish Parliament in one day. The Coronavirus (Scotland) Bill undoubtedly contains welcome measures e.g. protection for tenants against eviction by their landlords throughout the duration of the crisis.

The relevant provisions of the Bill are contained in Section 11(1) and (4) respectively and are as follows:

“The Scottish Ministers may by regulations provide that trials on indictment are to be conducted by the court sitting without a jury.”

This would, in effect, create a situation where a Sheriff or a Lord Commissioner of Justiciary in a solemn trial was both Master of the Law and Master of fact.

Not everyone is welcoming the Bill in its entirety: the Scottish Criminal Bar Association has been extremely critical of proposals which would, in particular, permit the temporary abolition of trial by jury (solemn trials).

Prominent members of the Scottish National Party, such as Joanna Cherry QC MP, have stated their extremely strong opposition to the proposals (see Tweet below):

Ronnie Renucci QC, Chair of the Scottish Criminal Bar Association, issued the following statement attacking the Bill’s provisions in relation to jury trials:

The proposals in this bill include attacks on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system and democratic tradition. … Any changes, however temporary, should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice. They should not at a stroke remove the fundamental principle of the right of those citizens charged with serious offences to a trial by a jury of their peers within a reasonable time. … The SCBA believes that these draconian measures seeking to bring about seismic changes to our system of justice are premature, disproportionate and ill-advised. They are at best a knee-jerk reaction to an as yet unquantified problem instigated by panic or at worst, something far more sinister.”

As Mr Renucci also points out in his statement, juries have been in existence in Scotland since the reign of King Alexander II (1214-49). Even during the Second World War, the practice of trial by jury continued – albeit restricted to 7 jurors as opposed to the usual number of 15.

I should, of course, point out that the vast majority of criminal trials (95%) in Scotland are conducted in the lower criminal courts – the Justice of the Peace and Sheriff Courts – under summary procedure. In England and Wales, the figures are similar. Yet, the emotional attachment to the right of trial by jury remains very strong in both jurisdictions.

We should not, however, ignore or downplay the value of solemn trials in that they permit someone who is accused of serious criminal offences (e.g. former Scottish First Minister, Alex Salmond) to be tried by a jury of his/her peers. A

There are unhappy precedents for restricting the right to trial by jury.

In Northern Ireland, during the period known euphemistically as ‘The Troubles‘, the Diplock Courts were established under the provisions of the Northern Ireland Act 1973. This legislation abolished the right to trial by jury for terrorism related offences. The rationale behind this development was to curb juror intimidation by paramilitary organisations such as the Provisional IRA and the Ulster Defence Association. These courts, where one judge presided, were highly controversial. They were only abolished comparatively recently as a result of the introduction of the Justice and Security (Northern Ireland) Act 2007.

During the first and second terms of the Blair Government (1997-2001 and 2001-2005 respectively), attempts were made to curtail the right to trial by jury in England and Wales. This would have applied to offences triable either way i.e. they could be tried under summary procedure or on indictment. In such situations, it is the choice of the accused (the defendant) to decide which sort of trial they should face – trial by magistrates or trial by jury. The Blair Government’s proposals were not welcomed and eventually sank beneath the waves of protest from a number of Mr Blair’s own MPs, members of the House of Lords, the Law Society and the Bar Council (to name but a few opponents).

https://www.theguardian.com/politics/2000/jan/21/jurytrials.law2

https://www.independent.co.uk/news/uk/politics/labour-rebels-to-ambush-blair-over-trial-by-jury-105088.html

Conclusion

Some 20 years ago, when Prime Minister Blair’s Government proposed restrictions on the right to trial by jury, the words of Lord Devlin, a former Law Lord, were often quoted. Lord Devlin’s remarks are worth repeating in the current context:

“…trial by jury is more than an instrument of Justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 31 March 2020

Assault!

red white and black textile
Photo by Martin Sanchez on Unsplash

The situation caused by the COVID-19 continues to generate all sorts of legal consequences. One of the latest angles to be given wide publicity is the rising number of incidents involving assaults carried out by individuals who claim to be infected with the virus.

Several innocent members of the public – whether they be private individuals, shop workers, Police officers or National Health Service staff – have experienced confrontations with extremely anti-social individuals who have threatened to cough over them or spit on them.

One such incident occurred at the weekend, which was reported by BBC Scotland (see below):

Assault in Scotland is generally treated as a common law offence. It would involve a physical attack (or an attempted attack) on another person. Threats issued by a person to a victim would also constitute an assault if these put the victim into a state of fear and alarm.

In relation to the above incident, the clear intention of the teenager (even if he was completely healthy) was to put the healthcare worker into a state of fear and alarm. Hopefully, the victim will remain completely healthy and free of viral symptoms.

This is not, however, the point: her attacker clearly had the mens rea (the guilty mind) and he followed this through with the actus reus (the wrongful act). If there are witnesses and other evidence which can corroborate the incident, then the Police may have grounds to charge her attacker with assault.

If the criminal investigation proceeds to this stage, it will then be for the Procurator Fiscal (the local prosecutor) to determine whether there is enough evidence to initiate criminal proceedings against the accused.

The Lord Advocate, James Wolfe QC has issued a statement in relation to assaults on key workers:

The Crown has a range of responses available to tackle unacceptable criminal conduct that may arise during the coronavirus pandemic. Any person who deliberately endangers life, or spreads fear and alarm by pretending to do so, will be dealt with robustly. It is difficult to imagine a more compelling case for prosecution in the public interest.

Although assault is generally considered to be a common law offence, we should be mindful of the provisions of Section 90 of the Police and Fire Reform (Scotland) Act 2012 which creates the statutory offence of assaulting or impeding the Police in the discharge of their duties. If an accused is successfully convicted of an offence in terms of Section 90, they may face a maximum prison sentence of 12 months and/or the imposition of a fine.

In England and Wales, a different approach is taken to assault: it is regarded as a statutory offence in terms of the Offences Against the Person Act 1861.

The Crown Prosecution Service for England and Wales has stated that attacks on emergency workers may result in a prison sentence of two years being imposed should the accused (the defendant) be found guilty of such an assault (as per Section 38 of the Offences Against the Person Act 1861).

Links to stories on the Sky News website about the rise of this type of criminal offence can be found below:

http://news.sky.com/story/coronavirus-nhs-staff-police-and-public-being-coughed-on-by-people-claiming-to-have-covid-19-11965058

http://news.sky.com/story/coronavirus-man-who-spat-on-police-while-claiming-he-had-coronovairus-is-jailed-11967349

http://news.sky.com/story/coronavirus-police-want-spit-guards-to-protect-officers-from-vile-behaviour-11969529

http://news.sky.com/story/coronavirus-policewoman-bitten-on-the-arm-while-explaining-covid-19-lockdown-rules-11971769

In the United States of America, incidents such as the above have more serious consequences: COVID-19 is classified as a ‘biological agent’. Attempts to spread or threats to spread the virus are treated as a terrorist offence (see below):

http://news.sky.com/story/coronavirus-two-charged-with-terror-offences-over-threats-to-spread-covid-19-11970802

Copyright Seán J Crossan, 31 March; 6 & 11 April 2020

Right to refuse?

Thanks to @beamomatic9000 for making this photo available freely on @unsplash 🎁

The COVID-19 crisis continues to throw up some interesting legal questions e.g. employment rights, EU freedom of movement rights, frustration of contract etc.

One area which seems somewhat overlooked is in relation to the actions of many retailers – principally supermarkets and grocery stores – which have been restricting sales of particular items. The items in question include soap, hand gel and sanitiser, bleach, anti-septic wipes, paper towels and even toilet rolls.

The COVID-19 situation has led to panic buying of these essential hygiene items and supermarkets have imposed clear limits on their sale.

Can supermarkets and other retailers impose these sorts of restrictions?

This, of course, takes us back to the basic rules governing the formation of a contract. Retailers are especially guilty when applying the term ‘offer’ to the goods which they stock. It is no such thing: goods on the shelves; on display; or in shop windows are invitations to treat. It is the the customer who is being invited to make the offer (see Fisher v Bell [1961] 3 ALL ER 731 where the English Court of Appeal ruled that a knife displayed in a shop window was not being offered for sale, it was merely an invitation to treat. Lord Parker, the Chief Justice being particularly emphatic on this point).

In the seminal case of Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB 401, the judges of the English Court of Appeal helpfully distinguished between an offer and an invitation to treat. The case arose as a result of a provision in the Pharmacy and Poisons Act 1933 which stipulated that the sale of certain medicines must take place in the presence of a registered pharmacist.

Boots Chemists operated a self service system whereby it’s customers were able to place the medicines which they wished to purchase in their shopping baskets. The key question was whether Boots was breaking the law by allowing customers to do this. In other words, was the sale completed when the customer placed the medicines in their baskets? Now, if goods on shelves were to be regarded as ‘offers’, Boots would indeed be breaking the law because customers would be deemed to be ‘accepting’ these ‘offers’ by placing the goods in question in their baskets.

If, on the other hand, the sale was concluded elsewhere i.e. at the cash register where there was always a registered pharmacist on duty, Boots would be fully complying with the Act.

The Court of Appeal concluded that it was the customer who made the offer by presenting the goods at the cash register. The sales assistant (properly supervised by the pharmacist) could conclude matters i.e. accept the offer by ringing the sale up on the cash register. Furthermore, it was always open to the assistant to refuse the customer’s offer. Goods on shelves were, therefore, merely an invitation to treat.

In more normal times, a customer’s offer would and should be refused by retailers because they are an underage person who is attempting to purchase e.g. alcohol, cigarettes or video games or DVDs which are age specific.

So, in this way, retailers are generally within their rights to impose strict limits on the numbers of certain items that customers wish to purchase. The customer can offer to buy 20 bottles of hand gel or sanitiser, but the store will have the right to refuse.

Presently, retailers are putting these sorts of restrictions into place in order to protect and promote public health by giving as many customers, as possible, reasonable access to basic hygiene products. If we co-opt the language of the Equality Act 2010, retailers are putting restrictions in place because these are a proportionate means of achieving a legitimate aim. So, hopefully, such restrictions – if fairly implemented and monitored – will not be subject to a legal challenge on grounds of discrimination.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/12/06/tis-the-season-of-special-offers/

https://seancrossansscotslaw.com/2019/03/27/special-offers/

https://seancrossansscotslaw.com/2019/03/14/too-good-to-be-true/

Copyright Seán J Crossan, 26 March 2020

Mr Salmond tholes his assize

Screen capture by Seán J Crossan from BBC Scotland’s website

Strange words i.e. uncommon: thole and assize.

Our non-Scottish readers may have difficulty with ‘thole’ – actually to thole, a verb. It means to be able to endure something or someone. Scots will commonly say that they can’t thole a person , meaning that they dislike or have very little time for an individual. I understand that people in in the North of England also use this word.

Assize is probably a word that some lawyers might be familiar with: it means a trial diet (sitting) of a criminal court. Perhaps the best example of the word coming into popular use was the term ‘the Bloody Assizes’ presided over by the notorious, English hanging judge, Lord Chief Justice George Jeffreys in 1685. These events were, of course, a long time ago and followed the Duke of Monmouth’s ill fated rebellion against his uncle, King James VII of Scotland (James II of England, Ireland and Wales).

Enough of history for now …

In the legal context, if we take the two words together and put them into the following sentence: he has tholed his assize, it means that someone has endured prosecution and trial and has been vindicated or acquitted.

This is precisely what happened today at Edinburgh’s High Court of Justiciary (Scotland’s Supreme criminal court of trial) when the former First Minister of Scotland, Alex Salmond was acquitted of 13 charges that he had sexually assaulted 9 women. The jury found him not guilty of 12 charges and returned a not proven verdict for the remaining charge. Mr Salmond was tried on indictment under solemn procedure in the High Court of Justiciary. Solemn or jury trials are reserved for more serious types of crime and they take place in either the Sheriff Court or the High Court of Justiciary.

It is worth pointing out to our non-Scottish readership that, in Scottish criminal trials, we have 3 possible verdicts, namely:

  • Not guilty
  • Not proven
  • Guilty

Not guilty and not proven are both acquittal verdicts, with the not proven verdict being a peculiarly Scottish development. I noted that the BBC referred to this verdict as “highly controversial”. It’s usefulness is still debated to this day, but it is a common outcome of many trials.

It was the jury of 13 – originally 15 – men and women that acquitted Mr Salmond. The jury in a criminal trial is said to be the ‘Master of the facts’, whereas the judge is said to be ‘Master of law’. It is, therefore, the task of the jury to weigh up the evidence presented at trial and come to its verdict.

At this point, I should also remind our readers that it is not simply a case of prosecution and defence presenting their respective cases at the trial. This would be to ignore the subtleties at play: the prosecutor (in the Salmond case: Mr Alex Prentice QC) has to operate under the onus or burden of having to prove the allegations against the accused. All the defence has to do is to deny the allegations. We operate in a system of criminal justice which emphasises the presumption of innocence.

I have been asked by several people over the last few weeks to predict the outcome of the Salmond trial. I have responded in the following way: I do not know Mr Salmond; and I have never met him or his accusers (I do not know these individuals either), so how can I give you a reasoned opinion?

Ah, but my questioners persist: surely, you have been following accounts of the trial via the media? To which I respond, not really …

Now the media does a very important job, but it can only provide us with a subjective view of things. Journalists will prioritise what they think are significant factors – no matter how impartial they think that they are being. Trial by media is never a good thing; it is to the jury alone that we entrust the task of determining the innocence or guilt of the accused.

We shall never know the precise motivations behind the jury’s decision today. Section 8 of the Contempt of Court Act 1981 makes it a criminal offence for jurors to reveal the reasons for their decisions (an interesting book about a jury trial in England, but not about the jurors’ deliberations, is The Juryman’s Tale by Trevor Grove (Bloomsbury: 2000).

It may be trite to say this, but there are no such things as open and shut cases. Things (the evidence) can and do sound very different in the surroundings of a court room. I have seen overly confident prosecutors come swiftly undone when the defence emphasises a flaw in the prosecution’s arguments. Here comes the nagging doubt I think; the chink in the armour; the reasonable doubt which heralds an acquittal verdict. Nothing is ever certain.

Whatever your views or feelings about Alex Salmond Esquire, this is exactly what happened today: the jury weighed up the prosecution’s case, found it deficient (in that it did not meet the criminal standard of proof) and acquitted the accused.

A link to an article about the Salmond verdict on the BBC website can be found below:

Scotland’s former first minister is found not guilty on 12 charges, while another allegation is found not proven.

Alex Salmond cleared of all sexual assault charges

BBC Scotland has also been running a podcast about the Salmond trial (please see link below)

https://www.bbc.co.uk/programmes/p0864016/episodes/downloads

Related Blog articles:

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/03/01/corroboration/

https://seancrossansscotslaw.com/2020/01/09/down-with-corroboration-i-say/

https://seancrossansscotslaw.com/2019/04/22/scrap-corroboration/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/https://seancrossansscotslaw.com/2019/12/28/alexa-theres-been-a-murder/

https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 23 March 2020