You’ve got (e)mail! … or will I ever get out of this place?!!!

Photo by Kon Karampelas on Unsplash

Email can be a wonderful form of communication. It can also be, quite frankly, something of a curse for many employees and workers. Essentially, you’re never too far away from the work-place and bosses/clients/service users expect to receive an instant reply.

The expectation by bosses and managers that employees and workers should be monitoring their emails (constantly) does tend to be a contributory factor in the rising number of cases of work-related stress. Employers: please note that you have a duty of care to provide a safe working environment and part of this obligation includes monitoring unacceptably high levels of stress in the work-place.

There is a perception (rightly or wrongly) that UK employees suffer from some of the longest working hours in Europe. In 2019, data from the EU’s Eurostat Agency seemed to support this contention but, interestingly, the Organisation for Economic Co-operation and Development (OECD) took a more sceptical approach by questioning the method of data collection (the old adage about lies, damned lies and statistics springs to mind here).

Links to a BBC article about this issue and the Eurostat figures (and OECD response) can be found below:

https://www.bbc.co.uk/news/uk-politics-49795179

https://ec.europa.eu/eurostat/databrowser/view/tps00071/default/table?lang=en

https://www.oecd-ilibrary.org/economics/international-productivity-gaps_5b43c728-en;jsessionid=c_2XYmRNoOJLRgHdT0TJPQqs.ip-10-240-5-115

UK employees are, of course, entitled to receive a written statement of the main terms and particulars of their employment as per Section 1 of the Employment Rights Act 1996. This statement must contain a provision which addresses the employee’s normal weekly working hours.

Despite Brexit (which did occur on 31 January 2020 – in case you missed it), the UK is still following EU rules until the end of this year … One EU Law with particular relevance to this debate is the Working Time Directive ((2003/88/EC) which was transposed into UK employment law by way of the Working Time Regulations 1998.

In theory, the Directive and the Regulations cap the number of hours that employees (and workers) can work at 48 hours per week (technical point: this figure can be averaged out over a reference period – 17 weeks normally). Crucially, however, UK employees and workers can opt out of the 48 hour maximum by signing a declaration (opt-out) that they wish to do so. If they change their minds, they are entitled to do so by giving the employer a minimum seven days’ notice (or in certain cases – 3 months) of this intention.

The legal rules on working hours are all very well in theory, but what about the culture of organisations which may (at an informal level) promote the idea that long hours spent at work (or just working) are a sure fire way to get ahead in your career?

This is where the influence of email (and other instant messaging services) can be quite insidious (pernicious even?). Employees feel under pressure to deal with this work load at weekends, during holidays and evenings. Parents of young children and carers of elderly relatives, who may have negotiated flexible working arrangements, may be under acute pressure to deal with emails etc when they are outside the work-place. In this way, the work-place becomes like the Eagles’ song, Hotel California (‘You can check out any time you like, But you can never leave!‘).

Interestingly, in some of our ex-EU partner countries, there have been initiatives at both the organisational and legal level to curb the smothering influence of email outside the work-place.

There is a real danger here for employers that, by encouraging employee use of email outside working hours, it may constitute a policy, criterion or practice (PCP) – no matter how informal – which could open themselves up to accusations of indirect discrimination on grounds of sex (women are still the primary carers for children and elderly dependents) and disability (by reason of a person’s association with a disabled person) in terms of Section 19 of the Equality Act 2010.

Furthermore, employees might feel that they are under constant surveillance by the employer because it becomes easier to keep tabs on individuals when they are logging in and out of the company’s IT network. For employers, this could lead to legal challenges from employees who are concerned that the right to privacy and family life as enshrined in Article 8 of the European Convention on Human Rights has been violated.

Is there a better way of doing things? Yes, is the short answer.

In 2011, the German multinational car manufacturer, Volkswagen (VW) introduced major changes to its working practices by curbing the use of emails when employees were off duty. This agreement was negotiated by the company and trade union/labour organisations.

In France, in August 2016, they went further and passed the El Khomri Law (named after the French Government Minister for Labour who introduced the proposal). This law gave employees a right to disconnect from email. In one particular case which involved the French arm of the British company, Rentokil, an employee was awarded €60,000 because his right to disconnect from email had been breached.

Links to stories about the changes to VW’s working practices and the French El Khomri Law can be found below:

https://www.telegraph.co.uk/news/2018/08/01/british-firm-ordered-pay-60000-french-court-breaching-employees/

The debate about the right of employees to disconnect from email – whether this is negotiated via some sort of collective agreement or underpinned by law – now seems to have penetrated the British consciousness. Rebecca Long-Bailey MP, one of the leading contenders for leadership of the British Labour Party has thrown her hat into the ring by backing a trade union campaign to introduce a legal right to disconnect in the UK.

One small problem: the Labour Party lost the last British General Election on 12 December 2019 to the Conservatives and is, therefore, in no position to deliver. Over to you Prime Minister Johnson? (a man fond of the populist gesture).

A link to an article in The Independent about Rebecca Long Bailey’s support for the trade union campaign to introduce a law guaranteeing the right to disconnect can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.110220/data/9327866/index.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/10/23/a-hard-days-night/

https://seancrossansscotslaw.com/2019/02/25/the-work-life-balance-or-utopia-reimagined/

https://seancrossansscotslaw.com/2019/02/22/stress-kills/

https://seancrossansscotslaw.com/2019/02/11/employment-contracts-read-them-or-weep/

Copyright Seán J Crossan, 11 February 2020

Swiss surprise?

Photo by Chris Johnson on Unsplash

Last week I wrote a Blog about Stonewall’s list of 100 most inclusive UK employers for LGBTI people. The article summarised the advances in terms of the range of legal protection that the LGBTI communities now enjoy. From protection against discrimination in employment to same sex marriage, the turnaround in fortunes from a persecuted minority to part of the mainstream has been truly remarkable.

F. Scott Fitzgerald, the author of The Great Gatsby once remarked that “Switzerland is a country where very few things begin, but many things end.”

Today, the Swiss voted in a referendum to introduce laws which would extend protection from discrimination to LGBTI people. The proposal attracted support from 63% of Swiss voters and, finally, begins to bring the country into line with many of its neighbours who happen to EU member states. Switzerland is not part of the EU and, therefore, is not under any obligation to implement European laws which combat sexual orientation discrimination.

Critics of the Swiss proposal stated that the proposal was unnecessary because the country’s constitution already protected LGBTI individuals (and the country is a signatory to the European Convention on Human Rights). There were also concerns about what the proposal might mean for freedom of speech. Clearly, a majority of voters did not share these concerns.

Switzerland has a reputation for being a relatively conservative society (with a small ‘c’). After all, it was only in 1991 that the Swiss canton of Appenzell Innerrhoden finally permitted women to have the right to vote in cantonal elections. In federal (national) elections, woman had been given the right to vote since 1971.

We often forget this has been an incremental or gradual process in the UK and it did not happen overnight. Therefore, it is not advisable to be for British people to be smug or to have feelings of superiority about this issue. It was, after all, as recently as 2003 that the Employment Equality (Sexual Orientation) Regulations 2003 were implemented by the then Labour Government of Tony Blair. For the first time in UK employment law, LGBTI individuals were protected from discrimination in employment and training. This important law, critically, did not cover the provision of services and it was with the passage of the Equality Act 2010 that this area was eventually covered.

A link to an article on the BBC News app about the story can be found below:

Switzerland votes in favour of LGBT protection bill

Related Blog Article:

https://seancrossansscotslaw.com/2020/02/02/the-only-gay-in-the-village/

Copyright Seán J Crossan, 9 February 2020

The only gay in the village?

The colours of Pride

Photo by Steve Johnson on Unsplash

The only gay in the village became a household phrase in the UK thanks to the long running Little Britain sitcom TV and radio series (which has been broadcast by the BBC since 2000).

Daffyd Thomas claimed to be the only gay person in a small, Welsh village (actually he wasn’t), but in some respects his catchphrase reflected the isolation that many people in the LGBTI communities experience – either in their personal or professional lives.

The reason that I mention this topic is because, last week, the LGBTI campaigning organisation, Stonewall, published research about the most inclusive LGBTI friendly employers in the UK (Newcastle City Council topped the list). That said, for many LGBTI employees, an inclusive work place is still a far off dream.

Please find a link to a story on the Sky News website about one employee’s decision to hide his LGBTI identity from his colleagues:

https://news.sky.com/story/i-felt-i-had-to-hide-my-lgbt-identity-at-work-so-i-decided-to-do-something-about-it-11920174

Links to Stonewall’s findings (and a Sky News article) can be found below:

https://www.stonewall.org.uk/system/files/2020_top_100_report.pdf

https://news.sky.com/story/stonewall-reveals-its-most-lgbt-inclusive-employers-11919950

A person’s sexual orientation is, of course, a protected characteristic in terms of Section 12 of the Equality Act 2010. Such individuals should not be subjected to direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

Many years ago, I remember teaching a group of students who were studying for a professional qualification. Many of them were employed by recruitment agencies and it was my task to highlight the relevant provisions of discrimination law at that time. One evening, we had a discussion about discrimination on the grounds of a person’s sexual orientation – particularly in the context of the ban on gay and lesbian people serving in the UK Armed Forces. This ban would eventually be lifted in 2000 – following the decision of the European Court of Human Rights in Smith and Grady v UK (1999) 29 EHRR 493.

One of the students asked me what protection existed for gay and lesbian people in employment law generally. Very little was my response. Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, the work place could be very hostile for LGBTI people (see Macdonald v Lord Advocate; Pearce v Governing Body of Mayfield School [2003] UKHL 34).

Yes, admittedly, the UK was (and still is in spite of Brexit) a signatory to the European Convention on Human Rights. In particular, Article 8 of the Convention recognises the right to family and private life. It was this Article which was used to overturn extremely restrictive laws on same sex relationships which existed in Scotland, Northern Ireland, the Isle of Man and the Channel Islands. Reinforcing Article 8 is Article 14 of the Convention is Article 14 which contains a general prohibition on discrimination.

The late 1960s are often referred to as the key period of the start of gay liberation in the UK with the passing of the Sexual Offences Act 1967 which decriminalised homosexual relationships between consenting adults (aged 21 or over) and as long as such conduct was in private. What is often overlooked is that the 1967 Act applied to England and Wales only. The picture was very different (and would remain so for over a decade – sometimes longer) in various parts of the British Isles.

Homosexual relationships were decriminalised in Scotland in 1980; in Northern Ireland in 1982; the UK Crown Dependency of Guernsey in 1983; the UK Crown Dependency of Jersey in 1990; and the UK Crown Dependency of the Isle of Man in 1994. The age of consent was set at 21 for all these parts of the British Isles. Things have since moved on.

In the last 20 years, the influence of the European Union has been particularly profound regarding measures to combat sexual orientation discrimination.

In 1999, as a result of the Treaty of Amsterdam, the EU adopted two Directives which considerably expanded the scope of its anti-discrimination laws (the Racial Equality Directive (2000/43/EC) and the Employment Equality Directive (2000/78/EC). Of particular interest to this discussion is the Employment Equality Directive which made it unlawful to discriminate against a person on grounds of sexual orientation. Admittedly, this Directive was limited because it covered the areas of employment and vocational training only.

It did not extend to the provision of goods and services, so had the case of Bull and Another v Hall and Another [2013] UKSC 73 had occurred when the Directive was transposed into UK domestic law, the same sex couple who were refused a double room at the guest house in Cornwall would not have been successful in their claim for sexual orientation discrimination.

On 1 December 2003, the Employment Equality Directive would eventually become part of UK law in the form of the Employment Equality (Sexual Orientation) Regulations 2003. The Regulations were repealed and replaced by the relevant provisions of the Equality Act 2010 (which came into force on 1 October 2010).

Shortly afterwards, the Civil Partnerships Act 2004 would give legal recognition (and protection) to gay and lesbian people who chose to enter such relationships. These rights would be further underpinned by permitting same sex couples to marry (in England and Wales in 2013 and in Scotland in 2014). Currently, Northern Ireland is the only part of the UK not to permit same sex marriage – although this will change from next week onwards (see link below):

Same-sex marriage: Couple ‘excited but nervous’ to become first in NI

Robyn Peoples and Sharni Edwards will celebrate their wedding on Tuesday in Carrickfergus.

This change to the law has come about as a result of the introduction of the Northern Ireland (Executive Formation etc) Act 2019 passed by the UK Parliament (in the absence of of a functioning devolved government for nearly the last 3 years).

The Treaty on the Functioning of the European Union (TFEU) is also worthy of comment. Article 19 prohibits discrimination by reason of a person’s sexual orientation and, notably, this provision is hardwired into UK law by way of the Equality Act 2010. Article 19 extended legal protection to gay and lesbian people more generally – over and above the limited areas of employment and vocational training which the Treaty of Amsterdam and the Employment Equality Directive had originally addressed.

The EU Charter of Fundamental Rights (although Poland and the UK had negotiated some opt-outs) contained significant provisions on equality and non-discrimination, namely, Article 20 (equality before the law) and Article 21 (the principle of non-discrimination).

Finally, if employers want to do more to create an inclusive work place, they could start by using Stonewall’s inclusive toolkits (see link below):

https://www.stonewall.org.uk/best-practice-toolkits-and-resources

Conclusion

As a society, the UK has certainly moved on from the overtly hostile attitudes towards members of the LGBTI communities over the last 50 years or so. The legal rights and protections which LGBTI people now enjoy would have seemed unthinkable in 1967 when a limited form of tolerance was ushered in as a result of the Sexual Offences Act (in England and Wales). More recently, the UK and Scottish Governments have issued pardons to those individuals who were convicted of criminal offences under the previous laws (in 2017: the Policing and Crime Act 2017 in England and Wales (known as Turing’s Law after Alan Turing, the Enigma Code Breaker) and, in 2018, the Scottish Parliament followed suit by passing the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018).

Postscript

On Friday 7 February 2020, Phillip Schofield, the British TV celebrity announced that he was gay at the age of 57. Mr Schofield is married with 2 children and had lived a heterosexual life – until now. He likened hiding his sexual orientation to being in prison and being consumed by it.

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

http://news.sky.com/story/phillip-schofield-comes-out-as-gay-11928156

If anyone doubts that homophobia still exists in the UK, please see the story below:

Homophobic graffiti daubed on Polo Lounge entrance in Glasgow

Police have launched an investigation after they were alerted to the vandalism at the Polo Lounge.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/01/04/pansexual/

https://seancrossansscotslaw.com/2019/12/31/civil-partner-i-do/

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

https://seancrossansscotslaw.com/2019/12/06/biased-blood/

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 15 February 2020

Civil partner? I do!

Photo by Jason Leung on Unsplash

As of today (31 December 2019), heterosexual couples in England and Wales will be able to enter civil partnerships as an alternative to marriage.

This change does not yet extend to Scotland: the Scottish Government has introduced its own Bill to introduce civil partnerships for heterosexual couples.

An info graphic showing the current progress of this Bill in the Scottish Parliament (Stage 1) can be seen below:

When the Labour Government of Prime Minister Tony Blair originally introduced civil partnerships across the UK (as a result of the Civil Partnerships Act 2004) such legal unions were open to gay and lesbian couples only.

It was the first time in the history of Scots and English family law that gay and lesbian couples were entitled to enter a legally recognised relationship.

Fast forward a decade or so and we now have same sex marriage in Scotland, England and Wales – but not yet Northern Ireland (although the clock may be ticking here on this issue). Admittedly, same sex couples can enter civil partnerships in Northern Ireland, but since the Republic of Ireland made same sex marriage legal in 2015, pressure has been mounting for change in the North.

The case which started the ball rolling was Steinfeld and Keidan v Secretary of State for Education [2016] EWHC 128 (Admin).

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. The ban on civil partnerships for heterosexual couples was also a potential breach of the Equality Act 2010 in the sense that it represented direct discrimination on grounds of a person’s sexual orientation. 

Initially, the English High Court rejected the challenge brought by Steinfeld and Keidan, whereupon the case was allowed to proceed to the English Court of Appeal. Although expressing sympathy for Steinfeld and Keidan’s predicament, the Lord Justices of Appeal refused to overturn the ban (see Steinfeld and Keidan v Secretary of State for Education [2017] EWCA Civ 81).

The couple were then given leave to appeal to the UK Supreme Court.

On 27 June 2018, the Supreme 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.

Following the Supreme Court’s decision, the UK Government of former Prime Minister Theresa May initiated steps to amend the Civil Partnership Act 2004 in respect of the law for England and Wales.

A link to an article about the change to the law in England and Wales on the Sky News website can be found below:

Civil partnerships: First mixed-sex couples celebrate union http://news.sky.com/story/civil-partnerships-first-mixed-sex-couples-celebrate-union-11898759

Related Blog Articles:

https://seancrossansscotslaw.com/2019/10/04/a-very-civil-partnership/

https://seancrossansscotslaw.com/2019/02/20/love-and-marriage/

https://seancrossansscotslaw.com/2019/02/08/the-gay-cake-row/

Copyright Seán J Crossan, 31 December 2019

Serious drugs

Photo by George Pagan III on Unsplash

Petitions for judicial review in respect of alleged breaches of Article 8 of the European Convention (right to respect for private and family life) submitted by serving prisoners seem to be very much in vogue.

At the beginning of December, we had the Court of Session dismissing a petition for judicial review submitted by William Beggs (the notorious ‘Limbs in the Loch’ killer (see William Frederick Ian Beggs v The Scottish Ministers [2019] CSOH 95).

Some weeks later, another petition has been disposed of by the Court of Session which raised many of the same legal principles. David Gilday, another inmate of Her Majesty’s penal establishments, has proved to be no luckier than Beggs.

Gilday was complaining about a breach of his Article 8 rights when correspondence (a greetings card) addressed to him was seized by the prison authorities on suspicion that it was impregnated with unlawful (psychoactive) drugs. Suspicions had been raised when a sniffer dog gave the package more than usual attention.

Article 8 of the European Convention is not an absolute right and it may be limited by State authorities (in this case the Scottish Prison Service) for:

“… the prevention of disorder or crime and for the protection of health or morals.”

Lord Pentland in the Outer House of the Court of Session noted:

“… that prison officers sometimes come into inadvertent contact with psychoactive substances in prison and the view had been taken that the SPS has a duty not knowingly to expose its officers to the risk of being exposed to such substances. That stance seems to me to be responsible and proportionate. In my opinion, a wide margin of discretion should be extended to the SPS to identify what constitutes a risk in a prison setting and to determine how best to address that risk … As I have already explained, the petitioner will become entitled to receive the card in the sealed bag at the stage when he eventually comes to be liberated from custody. I am satisfied that retention of the card until then serves the legitimate aim of controlling the use and distribution of drugs in prison.”

Consequently, the petition submitted by Gilday should be dismissed as the prison authorities had acted quite legitimately in interfering with the prisoner’s rights under Article 8 of the European Convention.

A link to Lord Pentland’s Opinion (Petition of David Gilday for Judicial Review of the actions of the Scottish Ministers [2019] CSOH 103) can be found below:

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh103.pdf?sfvrsn=0

Related Blog Article:

For your eyes only?

https://seancrossansscotslaw.com/2019/12/04/red-letter-day/

Copyright Seán J Crossan, 23 December 2019

Different standards?

Photo by Elyssa Fahndrich on Unsplash

An interesting case which caught my attention recently seemed to raise many issues which I have been emphasising to my students who are preparing for their upcoming Discrimination Law exam this month.

The case (The Governing Body of Tywyn Primary School v Aplin Case No 1600635/2016 [2019]) seemed to cover (almost) the whole syllabus of the Discrimination Law unit:

  • A discrimination dismissal of a high flying professional employee (a head teacher)
  • A large sum of compensation awarded to the employee for the dismissal (nearly £700,000)
  • Direct discrimination on the basis of a protected characteristic (the employee’s sexual orientation) in terms Sections 4, 12 and 13 of the Equality Act 2010
  • The real problems faced by the employee in attempting to mitigate his losses (which the amount of the compensation award reflects)
  • Breach of disciplinary procedures by the employer
  • Breach of human rights i.e. Article 8 of the European Convention on Human Rights (right to privacy and family life)
  • Alleged reputational damage caused to the employer as a result of the employee’s conduct
  • The reversal of the burden of proof
  • The use of hypothetical comparators

The facts

Matthew Aplin is an openly gay man who was the head teacher of Tywyn primary school in Wales. He has been a teacher for 19 years and has an excellent professional reputation. In 2015, allegations about Aplin’s private life came to the attention of his employer (the School’s Board of Governors). It was alleged that Aplin had engaged in consensual sexual relationships with two 17 year old males that he had met through Grindr, the well known dating app. Users of Grindr must be aged 18 or over and, significantly, Aplin did not suspect the true age of the two males.

Aplin believed that the two young men were over 18 and, in any case, users of Grindr have to be aged 18 or over.

Following these allegations of alleged misconduct, Aplin was suspended and the Board of Governors commenced a disciplinary investigation.

At the request of the Governors, an investigating officer (Mr Gordon) was appointed by the local council. Mr Gordon’s terms of reference in respect of Aplin’s behaviour were as follows:

  • (a) had this brought the reputation of the School into disrepute?
  • (b) had it impacted on his ability to undertake the role of Head Teacher?; and/or
  • (c) had it demonstrated so gross an error of judgment as to undermine the School’s confidence in him and, therefore, to call into question his continuation in the role?

Mr Gordon quickly concluded that Aplin should be dismissed from his post despite the fact that this employee did not represent a possible threat to children. Local Police officers were briefly involved in their own investigation, but significantly they later concluded that no crime had been committed by Aplin.

Despite this, Aplin was dismissed for gross misconduct by the School Governors.

He promptly appealed against his dismissal, but the Governors did not deal with this matter efficiently or properly. Angered at the perceived lack of fair treatment of his appeal, Aplin decided to resign from his employment and claim unfair (constructive) dismissal; discrimination by reason of his sexual orientation; and interference with his right to respect for private and family life.

The Employment Appeal Tribunal (which became involved to deal with technical aspects of the case) later noted:

There were numerous procedural errors which amounted to a breach of the implied term of trust and confidence in the investigation and the disciplinary hearing.”

Ordinarily, the burden of proof lies upon the claimant (Aplin) to show that discrimination has taken place. In this case, there were enough factors present which meant that the burden of proof should shift to the respondent (the School Governors) who would now have to show that they had not discriminated against Aplin.

On the question of whether the burden of proof should be reversed, Judge Shanks in the Employment Appeal Tribunal had this to say:

“… in my view the thrust of it [the Tribunal’s reasoning] is clear and it provides a sufficient basis for the ET’s decision that the burden of proof had shifted on the question of whether Mr Aplin was treated unfavourably because of his sexual orientation.”

In arriving at this position, Judge Shanks was firmly of the view that:

.. the Tribunal had rightly recognised that the background to the whole case was intimately connected with Mr Aplin’s sexuality; they then judge that the procedural failures by the School were so egregious that the inference could be drawn that there was more to it than simply the fact that he had had lawful sex with two 17 year olds; and they therefore considered that it would be possible, in the absence of any other explanation, properly to infer that he had been discriminated against because of his sexual orientation. That seems to me a perfectly acceptable line of reasoning.

The decision of the Employment Tribunal

Aplin had been unfairly dismissed; and subjected to direct discrimination by reason of his sexual orientation.

As a point of interest, the case involved the use of hypothetical comparators to arrive at its decision, namely, would a heterosexual teacher (either male or female) who had sexual relations with two 17 year olds have been treated in the same way as Aplin? The Employment Tribunal concluded that such individuals would not have been treated any differently.

Interestingly, in its final judgement, the Tribunal found that, although a person’s sexual relationships are undoubtedly covered by Article 8 of the European Convention on Human Rights, it is not an absolute right. Such a right may be restricted or interfered with “where it is necessary for the protection of morals” in “a democratic society”:

Thererefore, we consider that it is possible to conclude that in the circumstances of this case the claimant could have been disciplined
for his admitted conduct within the qualification in Article 8(2). …

… However, a fair process would require the respondent to consider whether the claimant was aware that the individuals were 17 years of age. Further it would have to consider what the real risk of the issues becoming public were and therefore what the real potential for
reputational damage was.

The two 17 year olds were children in the eyes of the law and Aplin, as a Head Teacher, could be viewed as someone who was in a position of power and that position which could be abused by him.

As Aplin had admitted to his conduct (the relationships with the two males), the Employment Tribunal concluded that there was at least. 20% chance of him being dismissed successfully – had the proper disciplinary procedures been carried by the employer (which of course they were not). In this respect, Aplin suffered a 20% deduction in the overall compensation awarded to him as per the guidelines originally laid down in Polkey v AE Dayton Services Ltd [1987] UKHL 8.

Links to the decisions of the Employment Tribunal and the Employment Appeal Tribunal can be found below:

https://assets.publishing.service.gov.uk/media/5dcd4bf140f0b608cb5cb738/Mr_Aplin_v_The_Governing_Body_of_Tywyn_Primary_School_-_1600635.2016_-_Judgment.pdf

https://www.bailii.org/cgi-bin/format.cgi?doc=/uk/cases/UKEAT/2019/0298_17_2203.html&query=(Tywyn)

A link to the story on The Independent’s website can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.171119/data/9205646/index.html

Copyright Seán J Crossan, 8 December 2019

For your eyes only?

Photo by camilo jimenez on Unsplash

Two days running and we seem to be on a bit of a theme in this Blog about a person’s right to privacy and the limits of such a right.

If you picked up on yesterday’s Blog article (The limits of privacy), you’ll be aware that generally speaking the common law of Scotland (and indeed that of England) does recognise a person’s right to a private life. This right is also protected in terms of Article 8 of the European Convention on Human Rights (as implemented by the Scotland and Human Rights Acts 1998).

That said, privacy is not an absolute right and there may be all sorts of situations where the State (or your employer for that matter) might legitimately take in interest in your activities (whether these happen on the job or are of an extra-curricular nature).

If you’re William Beggs today, you might be feeling rather upset about this. William Beggs, for those of you who don’t know, is currently serving a life sentence for murder in a Scottish Prison. He earned the rather grim moniker, ‘The Limbs in the Loch’ killer because of he dismembered his victim (Barry Wallace).

Well, Mr Beggs – somewhat ironically many would no doubt be quick to pass comment – wished to pursue a legal action in which he alleged that his human rights had been breached by the prison authorities. Specifically, Beggs objected to the practice of the authorities in opening and reading his private correspondence from his doctors and lawyers. In his opinion, the authorities (the Scottish Prison Service and the were in breach of his right to privacy as guaranteed by Article 8 of the European Convention on Human Rights.

There were three incidents between October and November 2018 where Beggs objected to the Scottish Prison Service monitoring his correspondence: two letters with the details of hospital appointments and one letter from his lawyer had been opened. The prison official who opened the letter from Beggs’ lawyer had done so mistakenly and the authorities apologised fully for this action.

Beggs submitted a petition for judicial review of the actions of the Scottish Prison Service (and also that of the Scottish Government as the supervising state authority) to the Court of Session in Edinburgh.

Beggs also brought a claim for damages of £5,000 that he was a victim in terms of Section 6 of the Human Rights Act 1998 and the Section 100(3) of the Scotland Act 1998.

The outcome of Beggs’ petition

Unfortunately, for Beggs the Court of Session (where his application for judicial review was being heard) did not agree.

Yes, there is a general duty in terms of Article 8 for public authorities (the Scottish Prison Service and the Scottish Government to which it is answerable) to guarantee the right to privacy for serving prisoners, but it is not an absolute right.

As Article 8 makes abundantly clear:

There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Lord Armstrong (in the Outer House of the Court of Session) was very clear, when arriving at his decision to reject Beggs’ petition, that the Scottish Prison Service had very good reasons for monitoring his confidential correspondence. According to rules 55 and 56 of the Prison and Young Offenders Institutions (Scotland) Rules 2011, such actions could be justified in situations where there was:

“reasonable cause to believe that the contents of the correspondence might endanger the security of the prison, endanger the safety of any person, or relate to criminal activity”.

Although the Prison authorities had erred when they opened Beggs’ legal correspondence, they had recognised this situation and promptly apologised to him.

Consequently, Beggs’ claim for damages was also rejected.

A link to Lord Armstrong’s Opinion can be found below:

William Frederick Ian Beggs v The Scottish Ministers [2019] CSOH 95

https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2019csoh95.pdf?sfvrsn=0

Copyright Seán J Crossan, 4 December 2019