Protected characteristic – Seán Crossan's Scots Law

Burn the witch!

It’s Halloween today and it seems perfectly natural to be talking about witches and the supernatural. It’s a day of fun for a lot of people – young and old.

That said, to call someone a witch – specifically – a woman, would likely be regarded as an example of misogyny or hatred of women. It would be intended as an insult.

Several hundred years ago, in Scotland, you would not be dressing up as a witch or a warlock (the male counterpart). There was a very real fear of witches and their ability to carry out evil deeds against well doing members of the community.

These sorts of beliefs may seem very strange to modern readers, but Scotland was a very different place some 400 years ago. Even the American colonies were susceptible to claims about witchcraft e.g. the Salem Trials (1692-93) which the playwright, Arthur Miller so marvellously and disturbingly brought to life in The Crucible. In Miller’s play, the authorities cynically use the trials to extend their control over the populace (it was no coincidence that the play was written at the time of the McCarthyite Anti-Communist witch hunts in fifties’ America).

European and American Society was markedly more religious in its outlook. These were pre-Enlightment times after all – before science and reason was in the ascendancy. Everything was either the handiwork of God – or his sworn enemy, the Devil. The evidence of this eternal struggle could be seen all around: a good harvest would be a sign of God’s favour, whereas times of famine would be a portent of evil stalking the land.

The Devil (or Deil in Scotland) was omnipresent and always on the lookout for followers to advance his agenda. This is where witches, warlocks, covens and familiars enter the story.

Thou shalt not suffer a witch to live

The Book of Exodus, in the Old Testament, was particularly strong on the issue of witchcraft:

“Thou shalt not suffer a witch to live.”

The above verse – tellingly – comes from the King James Bible (chapter 22 verse 18). I use the word tellingly because King James (VI of Scotland and I of England) had a special interest, not to say primal fear, in and of witches.

There were similar exhortations in other books of the Old Testament (e.g. Leviticus, 19:26 & 20:27 and Deuteronomy, 18:10-11 about the consequences of practising witchcraft.

In 1590, James was convinced that some 200 witches had cast spells against him in an attempt to sink the vessel he was travelling on when he returned from Denmark with his new bride, Anne. The ship had run into a serious storm and the crew and passengers were lucky to make landfall safely. Only divine intervention, so it seemed, had thwarted the malevolent designs of the coven who had set out to ensnare the Royal couple.

https://www.nationalgeographic.co.uk/history-and-civilisation/2019/10/royal-obsession-black-magic-started-europes-most-brutal-witch

Fears about witchcraft in Scotland did not begin with James. In 1563, the Scottish Parliament had passed the Witchcraft Act which made such practices a capital offence i.e. practitioners of the dark arts could expect the death penalty to be imposed (‘pane of deid’ in the language of the statute). The guilty parties (and there were rather a lot of them) would first be strangled and then burned. For the pious executioners this punishment was merely symbolic because eternal hellfire was the real and awful fate awaiting the newly deceased.

During his reign, James – who fancied himself something of an expert on the subject – would take the campaign against witches to a new level. Rooting out the followers of the Devil would be officially sanctioned by the Church and the State (which were really one and the same thing) according to Claire Mitchell QC. In fact, the King went so far as to record his thoughts on the occult in his Treatise called Daemonologie.

The Witchcraft Act would remain on the statute books in Scotland until 1736, but it would claim thousands of victims.

Pardoning the victims?

Claire Mitchell QC is one of the driving forces behind a campaign to have the existing Scottish Parliament issue a pardon to the estimated 3837 victims of the witchcraft trials. Most of the victims were women. As Claire explained, during an interview with Jeremy Vine on BBC Radio 2 last week, we have an idea of the numbers of victims and their profiles because of the existence of Parish Records and the records of witchcraft trials from the period.

Claire became aware of this gruesome period in Scottish history when:

“Doing research in the Advocates Library on ‘Bloody Mackenzie’, a Lord Advocate during the Witchcraft Act, I read a quote from a poor woman who had been convicted of witchcraft. She was so confused that she asked, ‘Can you be a witch and not know it?’ I was very angry and decided to find out more about Scotland’s witches.”

For more information about Claire Mitchell’s campaign, click on the links below:

https://scottishlegal.com/article/claire-mitchell-qc-seeks-posthumous-justice-for-scotland-s-witches

https://www.witchesofscotland.com

The issuing of general pardons by Parliament to redress historical miscarriages of justice are not a new development. Just this month, the Scottish Government published a Bill which aims to pardon people who took part in the 1984-85 Miners’ Strike in relation to three specific criminal offences.

For more information about this issue, please click on the link below:

https://www.lawscot.org.uk/news-and-events/legal-news/miners-strike-pardons-bill-brought-to-holyrood/

In 2018, the Scottish Parliament passed the Historical Sexual Offences (Scotland) Act which issued pardons to all those men who had been convicted of the offence of same sex activity. Homosexual activity – even between consenting male partners – was unlawful in Scotland until 1981.

Opposition to the pardons

Despite the above precedents, some legal commentators are not as enthusiastic about a general pardon being issued to the victims of the Witchcraft Act. Professor Douglas J. Cusine was firmly of the view that such gestures were using up valuable parliamentary time which could be concentrated on more pressing issues. In some respects, the pardons for gay men and the proposed ones for the miners are more logical and can be more easily justified in that many of the victims are still alive – or at least the injustices took place within living memory.

A link to a letter submitted to Scottish Legal News by Professor Cusine can be found below:

https://www.scottishlegal.com/article/letter-witch-pardon-risks-making-a-mockery-of-holyrood

That said, at time of greater awareness of violence against women and general misogyny, perhaps Professor Cusine is missing a trick (no pun intended).

For some recent stories about generalised misogyny, please click on the links below:

http://news.sky.com/story/johnny-depp-libel-trial-star-called-amber-heard-a-witch-in-text-messages-court-hears-12024026

http://news.sky.com/story/nhs-scandals-review-women-verbally-abused-by-clinicians-after-raising-concerns-12024212

Conclusion

We live in very different times when someone who says that they are a practitioner of witchcraft or the occult might well cause some curiosity on the part of his/her listeners.

Section 10 of the Equality Act 2010 may, arguably, now protect such an individual on the basis of their philosophical beliefs. We also have a far greater respect for a person’s private and family life in terms of Article 8 of the European Convention on Human Rights. In the 16th Century, individuals who seemed to be a bit left field or eccentric would not have appeared harmless or endearing to most members of the community. The stereotypical old woman who lived alone in the woods and who was a healer, could very quickly become the subject of communal hostility. It might even cost her her life.

For information about a modern witch or a pagan practitioner, please click on the link below:

https://www.bbc.co.uk/news/uk-scotland-58852476

Copyright Seán J Crossan, 31 October 2021

Sex or gender?

Sex or gender: which term do you prefer? Can they be used inter-changeably?

These questions have now come into sharp focus as a result of an amendment to the Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill.

Our understanding of the terms “sex” and “gender” may now have to evolve as a result of the debate surrounding aspects of the Bill, but before we discuss this Bill it’s worth looking at the current legal position surrounding gender recognition issues.

The Equality Act 2010

Section 11(1) of the Equality Act 2010 defines a person’s “sex” in the following terms:

In relation to the protected characteristic of sex — a reference to a person who has a particular protected characteristic is a reference to a man or to a woman

In other words, current UK equality law means that your sex is determined at birth when you will be categorised as ‘Male’ or ‘Female’ and this will be entered on your birth certificate. We, therefore, do not have a choice about our sex when we are born. It is a matter of biology.

What about a person’s gender? Section 7(1) of the Equality Act 2010 provides us with guidance on this matter:

A person has the protected characteristic of gender reassignment if the person is proposing to undergo, is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing physiological or other attributes of sex.

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.

The Scottish Government was intending to reform the 2004 Act, but in the teeth of strong opposition within the Scottish National Party, such proposals have been dropped for the time being.

Self-identification

Under the Scottish Government’s proposals, an individual would have been permitted effectively to 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.

This meant that an individual wishing to undergo gender reassignment in Scotland 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).

Forensic Medical Services (Victims of Sexual Offences) (Scotland) Bill

This Bill has proved to be another flashpoint in the often fierce debate over gender recognition.

The Bill, which passed Stage 3 in the Scottish Parliament on Thursday 10 December 2020, has reignited the debate about the terms “sex” and “gender” and their use in legislation.

The Bill passes Stage 3 in the Scottish Parliament

The purpose of the Bill is set out below:

“… to improve the experience, in relation to forensic medical services, of people who have been affected by sexual crime. It does this by providing a clear statutory duty for health boards to provide forensic medical examinations to victims and to ensure that an individual’s healthcare needs are addressed in a holistic way in the context of any such examination (or where such an examination is not proceeded with). As well as placing a duty on health boards to provide forensic medical examinations when a victim is referred for such an examination by the police, the Bill allows victims to “self-refer”. Self-referral means that a victim can request a forensic medical examination without having reported an incident to the police. The Bill provides a statutory framework for the retention by health boards of samples obtained during a forensic medical examination, which may support any future criminal investigation or prosecution. In self-referral cases, this allows the victim time to decide whether to make a police report.”

A controversial amendment?

At first glance, no one could possibly object to the aims of the Bill, but Johann Lamont MSP, a former leader of the Scottish Labour Party, saw an opportunity to introduce an amendment to the Bill.

Such a development is not an unusual practice for parliamentarians to introduce amendments to Bills proceeding through Parliament. The introduction of amendments to Bills often permit reform to earlier pieces of legislation. In this case, the Lamont amendment was directed towards changing the wording of Section 9(2) of the Victims and Witnesses (Scotland) Act 2014.

As things currently stand, Section 9(2) of the 2014 Act states that:

Before a medical examination of the person in relation to the complaint is carried out by a registered medical practitioner in pursuance of section 31 of the Police and Fire Reform (Scotland) Act 2012, the constable must give the person an opportunity to request that any such medical examination be carried out by a registered medical practitioner of a gender specified by the person.

This could mean, under current law, that a victim of a sexual assault e.g. a biological or cis woman might have to undergo an examination by a medical professional who is a transgender female.

The Lamont amendment (which has now been accepted overwhelmingly by the Scottish Parliament) will ensure that the word “gender” will be replaced with the word “sex”.

Johann Lamont’s amendment will remove an anomaly in the law which currently permits a transgender person who is a medical professional to examine a victim of a sexual assault.

Further controversy

When one flashpoint is resolved, another disagreement about sex and gender is never far away in Scotland.

An organisation called forwomen.scot is raising a legal action in the Court of Session in Edinburgh for the express purpose of challenging the Scottish Government’s attempt to redefine the word ‘woman’ (see below):

“… We are challenging the Scottish Ministers over the redefinition of “woman” in the Gender Representation on Public Boards (Scotland) Act 2018 which we believe is outside the legislative competency of the Scottish Parliament under the Scotland Act 1998 and in contravention of the Scottish Ministers’ duties under equality legislation… The new definition includes some men, while, remarkably, excluding some women. This cannot be allowed to stand… The Equality Act 2010 states that a woman is “a female of any age” and maintaining this definition is key to maintaining women’s rights and protections in law…”

forwomen.scot describes rationale on its website in the following terms:

– sex is immutable and is a protected characteristic;
– women are entitled to privacy, dignity, safety and fairness;
– women’s rights should be strengthened.

https://forwomen.scot

All quiet on the Western Front? Hardly … expect this issue to run and run.

Copyright Seán J Crossan, 4 February 2021

No problem here?

In the second of two articles for Black History Month, my friend and colleague, Tony Adams reviews No Problem Here: Understanding Racism in Scotland (Luath, 2018) Neil Davidson, Minna Liinpaa, Maureen McBride and Satnam Virdee (eds.). This article originally appeared in The Scottish Left Review (Issue 106 July/August 2018).

Racism in Scotland is often relegated to the back burner. Even when the issue of racism is broached by anti-racists campaigners the stock responses they are met with is that ‘Things aren’t as bad as all that, you exaggerate; you’re indulging in special pleading or you must be paranoid’. Little wonder there is this widely held view both by politicians and academics that ‘there is no problem here’. Ethnic minorities are congratulated for integrating better and there is a welcoming attitude towards refugees and migrants.

Meanwhile research into the historical record and contemporary reality tells a different story. The racialized outsider faces discrimination in education, jobs, housing and at the hands of the police and criminal justice system. Racism in Scotland is, therefore, not a side issue and it is not peripheral either. It is central to the way things work. The question of racism in Scotland and the interplay, of race class, nationalism and other intersecting issues are very focal to this edited book. It brings together the views of academics, activists and anti-racism campaigners who argue that it is vital that the issue of racism be brought into public discourse.

In contrast to England, there has been relatively little public discussion about the historical or contemporaneous structuring power of racism in Scotland. ‘We wish to dig beneath the ‘race
blind’ narrative that Scotland and its elites have crafted for many years, to perhaps unsettle them a little, so that we might begin to open up space for writing a historical sociology of racism in Scotland’ the book says. Its contributors ‘contend that the narrative of an absent racism in Scottish history and that the Scots are more egalitarian, more likely to place an emphasis on collectivism over individualism and on government intervention over self-reliance reinforces the myth that Scotland does not have a serious racism problem’. Instrumental to the consolidation of this powerful myth that ‘there is no problem here’ is that memorable Scottish phrase, ‘We’re a’ Jock Tamsin’s bairns’.

Such myth making has the effect of deflecting attention away from the disproportionate role that Scots actually played in the British Empire. It occludes any discussion of racisms in the country. Empire is central to the union. TheAct of Union, 1707, opened up English colonial markets to Scottish merchants and made it possible for Scots to play
a role in the construction of the British Empire. But when we think of the British Empire our minds often drift to England rather than to Scotland. Yet Scotland was complicit in the slave trade and had colonies predating the joining of the union. It is significant to note here that slavery or the slave mode of production was central to early capital and racism became its justification. Thus racism has evolved entwined with capitalism over the last three centuries.

There is a level of amnesia that clouds the history of empire. Glasgow was the second city of the empire and, by the end of the Victorian era, Scots firms had attained a controlling position in key sectors of the economy of British India. Rather than sanitizing its past in order to re-imagine a post-union future, perhaps we need to look back at Scotland’s imperial history and connect it to a broader understanding of the British empire and Britain’s colonial past.

This perception that Scotland has less of a problem with racism than other areas of the UK is not borne out by the statistics either. In 2013-14 there were 4,807 racist incidents recorded by police
in Scotland, the equivalent of 92 incidents a week without accounting for the many cases that go unreported. And lest we forget that there has been racist murders here many of which have still not been formally acknowledge as racist – Nuer Mohamed, Hector Smith, Shamsie Din Mohamed, Imran Khan, Sanjit Singh Choker and Sheku Bayoh to name a few. The growth of far right parties and the rise of Islamophobia across Europe and the US has to be challenged and driven back. Scotland is not immune from this.

The book explores the different modalities of racism in Scotland and the ways in which cultural racism has become central to the experiences of particular social groups. It also seeks
to locate the contemporary debates on racialization and racism in their appropriate context in Scottish history. As the late historian E H Carr once put it: ‘There is no more significant pointer to the character of a society than the kind of history it writes or fails to write’. No Problem Here is a welcomed and important starting contribution that will invigorate the debate of what kind of Scotland we live in and what kind of Scotland we want it to be.

Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal.

Black sailors and the battle of George Square

To mark Black History Month, my friend and colleague, Tony Adams recalls a forgotten chapter of the events around ‘Red Clydeside’ in 1919. This article was originally published in the Scottish Left Review.

The year, 1919, in Britain represents a high point in working class struggle and one un-matched since in its breadth and scale. Over 34m working days were not worked due to strikes compared to an average of 4.5m for each of the preceding four years. Two thousand soldiers, ordered to embark for France, instead mutinied and formed a Soldiers’ Union. Even the police force struck and demanded the right to unionise. Britain, it is said, was on the brink of a revolution. On 31 January that year a violent confrontation took place in Glasgow between the police and radical striking workers centred in and around the area around George Square. The workers were striking to demand a reduction of the working week from 54 hours to a 40 hour working week.

At a massive union rally in George Square on the day of the protest, the red flag was raised above 60,000 striking shipbuilding and engineering workers. Newspapers of the next day dubbed the demonstration which saw pitched battles between the police and strikers as ‘Black Friday’ or ‘Bloody Friday’. What began as a protest soon became a riot, with fighting across the city continuing throughout the night and 53 people were recorded injured. This dramatic incident and the leaders of the strike have been mythologised under the banner of ‘Red Clydeside’.

Meanwhile, a lesser known harbour race riot on Thursday 23, January 1919 in which black British colonial sailors were branded as unfair economic competitors by the national seamen’s unions and their local delegates, has been overlooked both in the personal and historical accounts of the general strike until more recently. The riot began in the yard of the mercantile marine office in James Watt Street where sailors gathered for their chance to be signed on to a ship. While waiting to see if they would be hired, competing groups of black and white sailors jostled and shouted insults at each other. This baiting descended into a pitched battle which spilled out of the yard onto the street. More than thirty black sailors fled the sailors’ yard pursued by a large crowd of white sailors. White locals joined the crowd which grew to several hundred strong. The rioters used guns, knives, batons and makeshift weapons including stones and bricks picked from the street. On being chased out of the hiring yard, the group of black sailors initially ran towards the nearby Glasgow sailor’s home on the corner of James Watt Street and Broomielaw Street. The white crowd smashed the windows of the sailor’s home and then invaded it. The two or three beat police officers in the harbour area were overwhelmed and an additional force of 50 police officers was called in. The large police force cleared the two set of rioters from the sailors home.

Though the staging of a general strike in Glasgow, its collapse following ‘Bloody Friday’ and the presence of tanks in the city centre the next day were far more eye-catching than the riot in the harbour a week earlier, the two events were explicitly inter-connected through the activities of the members of the leadership of the 40-hours strike movement. Emanuel Shinwell, leader of the Glasgow branch of the Seafarer’s was in addition, president of the Glasgow trades and labour council and chairman of the workers strike committee. Although a moderate, he advocated direct action in the most inflammatory terms in the days leading up to both the harbour riot and the mass protest of the 40-hours campaign. He and other strike leaders, such as William Gallacher, sought to encourage unskilled workers – including seamen – to take part in the sort of strike action that had been the province of the skilled workforce on wartime Clydeside. The two episodes ought to be viewed together as the harbour riot and the George Square demonstration occurred within a few days of each other. This proximity was much more than coincidental especially as the riot in Glasgow seaport, was soon followed by similar riots in South Shields, Salford, London, Hull, Liverpool, Newport, Cardiff and Barry.

It is important to note that the Glasgow harbour riot was the first instance of a spate of rioting focussed upon black residents in British ports which reached its height in June of that year. It was also part of the wider picture of industrial strife which has been simmering below the surface on Clydeside and other heavily industrialised regions throughout the war years and into 1919.

During these riots, crowds of white working class people targeted black workers, their families, black owned businesses and property. One of the chief sources of the violent confrontation in the run- down port areas was the ‘colour’ bar implemented by the sailors’ unions campaigning to keep black, Arab and Asian sailors off British ships in a time of increasing job competition. The imposition of a ‘colour bar’ on black workers at Glasgow and elsewhere around Britain’s seaports to protect white British sailors’ jobs illustrates the disregard for sections of the working class among many of those who considered themselves protectors of the organised workforce. Historically expressions of racist hostility have been tied to questions of employment. Hostility towards groups of fellow workers among trade unionists was nothing new. The opposition of white union members to the employment (in some cases) of cheaper overseas merchant sailors, violently demonstrated at Glasgow harbour, bears comparison to the wartime industrial action on Clydeside which aimed at preventing the ‘dilution’ of skilled with unskilled job losses and the permanent undercutting of ‘engineers’ wages.

The sea port riots of 1919 in which white crowds attacked black workers, their families and communities, have long presented a painful conundrum as they prefigure a century of conflict and harassment of people of colour in Britain. The causes of the riots are located in the interplay between on-going strikes, riots and other collective violence elsewhere in Britain and the Atlantic basin as well as the local context and meanings (including housing shortages and unemployment). In this light, the British riots appear less an isolated eruption ‘proving’ British racism, as they have often been portrayed. They were part of a broader political movement of resistance against post-war betrayals. This made the role of service and recently demobilised men a significant factor in the riots, one which was commented upon in many local press accounts of the violence. It is also clear that the specific grievances of the white sailors were not the only issues in the riots. The sense that the great sacrifices of the war years had been futile was being experienced at a national level as post-war shortages in housing and increased competition in the job market were the first results of mass demobilisation. Wider frustrations were being focused on the black community in Britain as a means of release. That the authorities in part recognised this is often apparent from the light sentences meted out to the white rioters in various centres around the country. However, there is also an element of racial antipathy revealed by the official response to the riots.

The fear of violence in the immediate post-war period became a worldwide phenomenon, and not without reason. The level of global unrest in the late 1918 and 1919 is also worth considering as it provides a wider context in which the race riots in Britain may be discussed. The Bolshevik revolution in Russia in 1918 provided governments worldwide with a spectre of the overthrow of the state in a situation of crisis. The attempted revolts of the Spartakist movement in Berlin, the establishments of soviets in Bavaria, Hungary and Czechoslovakia and the socialist revolt in Austria fuelled the worldwide fear of Bolshevism. It was not merely in the ‘defeated’ nations that unrest occurred for the politicising effect of war service and the strains placed on every day society by the war resulted in riots in the United States, the Caribbean, Africa as well as in Britain. As one of Scotland’s leading expert calls for a permanent fixture to remember the demonstration which took place on 31 January 1919, the black sailors of the Glasgow harbour riots deserve a place to be commemorated too because there is a single working class in Britain by historic right and present participation.

Tony Adams is a lecturer and EIS equality rep at City of Glasgow College. He has published in the Asian Times, Caribbean Times, Morning Star and Weekly Journal. Jacqueline Jenkinson’s ‘Black 1919 Riots, Racism and Resistance in Imperial Britain’ (Liverpool University Press, 2009) is the best available study of the issues.

Related Blog Articles:

https://seancrossansscotslaw.com/2020/04/13/no-blacks-no-irish-no-dogs-we-like-to-think-that-such-signs-are-a-thing-of-the-bad-old-days-in-housing-law-what-about-no-dss-tenants-some-recent-legal-actions-suggest-that-such/

https://seancrossansscotslaw.com/2019/06/17/is-it-cos-i-is-black/

The love that dared not speak its name

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

Every day is supposedly a school day and I have just learned that, 125 years ago today, Oscar Wilde, Victorian poet and novelist, began a sentence for 2 years’ imprisonment for the crime of gross indecency in terms of Section 11 of the Criminal Law (Amendment) Act 1885.

This was the culmination of several legal actions in which Wilde had become embroiled in order to end speculation about his sexual orientation. Although married and being the father of two children, Wilde had a secret: he was a gay man living in a very hostile environment.

It was such a hostile environment that Professor Dominic Janes of Keele University (and author of Oscar Wilde Prefigured: Queer Fashioning and British Caricature, 1750-1900) (University of Chicago Press, 2016) states that:

“Britain had some of the strongest anti-homosexuality laws in Europe … The death penalty was in place until 1861 [the last execution took place in 1835]. In general, one of the main images of what we’d call a gay or queer man was a sexual predator of younger men. Many people would have also been informed by religious arguments from the Old Testament.”

When Wilde’s ‘sexual transgressions’ with a number of younger men were finally exposed in court due, in a large part, to the work of a private detective, he didn’t really stand a chance against the ensuing moral outrage of Victorian society.

The trials and eventual prison sentence would ruin Wilde financially and reputationally – for good (or so it seemed at the time).

More information about the trials of Oscar Wilde can be found in an article which appeared in The Independent to mark the 125th anniversary of his downfall.

https://edition.independent.co.uk/editions/uk.co.independent.issue.250520/data/9525296/index.html

The long and winding road

If Victorian society was uniformly unforgiving and scornful of Wilde in 1895, contemporary British society has certainly rehabilitated his reputation. There is now almost universal agreement that Wilde was the victim of oppressive laws and social attitudes.

Wilde himself would probably be astounded at the amount of progress that members of the LBGTQI community have made in the intervening 125 years.

I’m also sure that he would be delighted to know that he is still the focus of discussion in 2020 (“There is only one thing in life worse than being talked about, and that is not being talked about.”).

It has been a a long and winding road for members of the LBGTI community to achieve legal recognition and protection.

Before the introduction of the Scotland Act 1998 and the Human Rights Act 1998, society (and particularly 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).

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; then reduced to 18; and then finally 16 years of age. Societal attitudes had moved on and the law had to follow.

In the last 20 years, the influence of the European Union has also been particularly profound regarding measures to combat sexual orientation discrimination. In spite of Brexit, there is a large body of anti-discrimination law which has been bequeathed to us as a result of our membership of the European Union.

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.

This body of law is not just going to disappear overnight when the transitional period for Brexit ends (as currently anticipated by the UK Government) on 31 December 2020. As I often remark, European Union has become hardwired into the various legal systems of this disunited Kingdom.

Indeed, 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).

Even greater strides towards equality were ushered in as a result of the Civil Partnerships Act 2004 which 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). Northern Ireland finally legalised same sex marriage in 2020.

When Oscar Wilde was serving part of his sentence in Reading Gaol (which inspired his Ballad of the same name) he could hardly have contemplated life as we know it in 2020.

Related Blog Articles:

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

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, 25 May 2020

Scotland’s shame

Look at the above image: the crime of vandalism? Almost definitely, but put it into context and a more sinister picture emerges that of sectarianism.

The building in the picture is a meeting place of the Loyal Orange Order and it has been spray painted with blatantly offensive graffiti which is diametrically opposed to everything that the Order stands for i.e. the unity of the British State, upholding Protestant religious values and support for the British monarchy. This is not just an act of vandalism: it is also a hate crime; an example of sectarianism.

The vandals, if ever caught, may also incur civil liability for their actions. Section 10 of the Equality Act 2010 covers the protected characteristic of religion and philosophical beliefs.

Sadly, these types of incidents can be all too common and both sides of the sectarian divide can be guilty of such behaviour. In January 2019, a young man admitted to a sectarian offence at Glasgow Sheriff Court. While attending an Orange Walk, Bradley White spat on a Catholic priest, Canon Tom White, who was standing at the door of St Alphonsus’ Church when the parade passed by. The incident gained a lot of media attention.

Man who spat on Glasgow priest caught by his own DNA

A sheriff condemned the “disgusting” assault, which took place outside a Glasgow church as an Orange walk went past.

The Scottish Parliament (which first sat in 1999) was keen to address the issue of sectarianism and finally did so by passing the much maligned Offensive Behaviour at Football and Threatening Communications (Scotland) Act 2012.

The 2012 Act acknowledged that a large part of sectarian division was expressed through the medium of football with reports of disorder at stadia and offensive comments being circulated on social media.

It was also the fact that before the 2012 Act was introduced, Scots Law had an existing arsenal upon which to draw when tackling hate crimes of a sectarian nature, namely:

Common law offences
Criminal Law (Consolidation) (Scotland) Act 1995
Crime and Disorder Act 1998
Criminal Justice (Scotland) Act 2003

The 2012 legislation has since been repealed by the Scottish Parliament on the grounds that it was difficult to operate and that it had significantly restricted freedom of speech.

Related Blog article:

https://seancrossansscotslaw.com/2019/12/26/a-pile-of-mince-or-a-dogs-dinner/

That said, the Scottish Government has not been prepared to leave this area alone and it instructed Lord Bracadale, a retired Senator of the College of Justice to chair an inquiry into the current state of hate crime laws in Scotland.

A link to Lord Bracadale’s recommendations can be found below:

https://www.gov.scot/publications/independent-review-hate-crime-legislation-scotland-final-report/

A secular society?

Although, the United Kingdom is regarded as a largely secular society in that the majority of its citizens no longer profess allegiance to a particular religion, many of the its people come from a distinct religious tradition. Yet, the British State itself has not caught up with these social trends: Queen Elizabeth II is the Supreme Governor of the established Church, the Church of England; and Anglican Bishops still sit in the House of Lords deliberating on and making laws for the country.

According to the British Social Attitudes Survey of 2018, more than 50% of people in Britain stated that they had no religious beliefs.

A link to an article in The Guardian about this aspect of the Survey can be found below:

https://www.theguardian.com/world/2019/jul/11/uk-secularism-on-rise-as-more-than-half-say-they-have-no-religion

The Protestant Reformation

Since the events of the Protestant Reformation in 16th Century, religious and political tensions have been a hallmark of British and Irish culture and society.

England, Scotland and Wales became Protestant countries while Ireland remained overwhelmingly Roman Catholic in its religious outlook.

To proclaim yourself as a Protestant was to pledge your loyalty to the Scottish and English Crowns (there was not yet a United Kingdom, although there was a union of the two Crowns in 1603).

To assert your Catholicism was often viewed as disloyal and treasonous. It could also mean that you could be subjected to criminal sanctions e.g. fines, confiscation of property, imprisonment and even the death penalty.

The Reformation raised Ireland’s already tense and problematic relationship with England to new heights (and later Scotland when James I became King of England).

Suspicion about Roman Catholics’ loyalties were further exacerbated as a result of the Gunpowder Plot of 5 November 1605. Robert Catesby, Guy Fawkes, Thomas Percy and their co-conspirators were fanatical Roman Catholics who wanted to kill the King and his key Ministers by blowing up the State opening of Parliament. Had the Plot been successful, plans were in hand to re-establish Catholicism as the religion of the embryonic British State.

Sectarianism in Scotland

Historically, religious discrimination or sectarianism in Scotland has been a big problem and has often been referred to as ‘Scotland’s shame’. These tensions really began to surface during the Irish Potato Famine (an Gorta Mór) in the 1840s. Thousands of Irish people – who were overwhelmingly members of the Catholic Church – left their homes and settled in Scotland in search of work and to escape hunger.

This huge influx caused tensions with the local Scottish, Protestant communities. In Glasgow in 1814, there was just one priest – Reverend Andrew Scott – serving the Catholic community. Father Scott supervised the building of St Andrew’s RC Cathedral on Glasgow’s Clyde Street in order to minister to his “vast Irish flock” (James Handley: The Irish in Scotland (1964): 127).

In the years following, many Irish continued to come to Scotland (and other parts of the UK) in search of work. Caused huge social tensions and Irish people were often the target of institutionalised discrimination. In Scotland, this discrimination always had a religious dimension – better known as sectarianism.

Discrimination ran right through Scottish society: Catholics and Protestants went to different schools, attended different churches, lived in separate neighbourhoods and, significantly, supported different football teams e.g. in Glasgow, Catholics supported Celtic FC and Protestants supported Rangers FC; in Edinburgh, Catholics supported Hibernian FC while Protestants supported Heart of Midlothian FC; and in Dundee, Catholics supported Dundee United whereas Protestants supported Dundee FC.

Conclusion

Although religious participation in Scotland has decreased significantly – in line with trends across the UK generally – the echoes of religious traditions can still be heard. In Glasgow and west-central Scotland (where Irish immigration was most heavily concentrated), support for Celtic and Rangers Football Clubs is still a pretty good indication of a person’s ethnic and religious origins.

The Scottish Parliament and Government has tried to take a lead in combating sectarianism – not always successfully. To the credit of the Government and Parliament, they are not prepared to leave the matter and Lord Bracadale’s recommendations on updating existing Scottish hate crime laws are both welcome and timely.

Copyright Seán J Crossan, 20 April 2020

You’re Black; you’re banned!

In June 2019, I wrote an article which has become one of my most viewed Blogs – ‘Is it cos I is Black?’ The title was taken from Sacha Baron Cohen’s comic creation Ali G whose catchphrase it is. In that article, there was nothing actually that funny. My purpose was to highlight the shockingly high levels of racism that people of Afro-Caribbean origin still continue to experience in contemporary Britain – in spite of all the legislation (such as the Equality Act 2010) which theoretically puts people on an equal footing.

Race is a protected characteristic in terms of Sections 4 and 9 of the Equality Act 2010 and it is unlawful if a person is subjected to prohibited conduct e.g. direct discrimination (Section 13); indirect discrimination (Section 19); harassment (Section 26); and victimisation (Section 27).

It will, therefore, be unlawful in the UK to subject a person to a detriment because of race in relation to employment, education, training and the provision of services generally.

Bearing all of this mind, I was startled to read about a story from Guangzhou, China where a McDonald’s outlet has been severely criticised due to its staff refusing entry to African Americans. No reason has been given for this behaviour.

McDonald’s is understandably very sensitive about this issue and has apologised for the behaviour of its staff.

Had this incident occurred in the UK, you would be correct to conclude that legal action in terms of Sections 9 and 13 of the Equality Act 2010 would have been threatened. To anyone who doubts that discrimination against Black people is a thing of the past, this story will serve as a timely wake up call. Who would have thought that such things would still be going on in 2020?

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

Outrage after black people banned from McDonald’s branch in China

http://news.sky.com/story/outrage-after-black-people-banned-from-mcdonalds-branch-in-china-11973200

The story from China reminded me of an incident in the American city of Philadelphia which involved racism against two African American men who were arrested in a Starbucks outlet. The men were waiting for a friend to join them in the store when a manager called the Police because they had not purchased anything. They were taken from the store in handcuffs by the Police. The incident went viral and The ensuing publicity did Starbucks no favours at all.

A link to this story as reported by The Independent can be found below:

https://www.independent.co.uk/news/world/americas/black-men-starbucks-philadelphia-settlement-1-dollar-entrepreneurship-fund-a8333526.html

Related Blog Articles:

https://seancrossansscotslaw.com/2019/06/17/is-it-cos-i-is-black/

Copyright Seán J Crossan, 15 April 2020

No Blacks, No dogs, No Irish!

The title of this Blog refers to the not so distant past when discrimination was an accepted feature of life in the United Kingdom. In the 1950s and 1960s, these types of signs were routinely displayed in the windows of hotels, boarding houses and guest houses in the United Kingdom. They were blatantly racist, but completely legal.

It wasn’t just an unwillingness by White British landlords to rent rooms or properties to Afro-Caribbean and Asian families especially, ethnic minorities were often actively discouraged from purchasing properties in White neighbourhoods.

In 1968, Mahesh Upadhyaya, a young Asian immigrant to the UK, mounted legal challenge in respect of a refusal by a white British builder to sell him a house. It was the first time that anyone could do this. Mr Upadhyaya was able to do this because the Race Relations Act 1968 had just come into force. Although Mr Upadhyaya’s claim was ultimately dismissed on a technicality, the action generated a lot of publicity and greater awareness of the existence of anti-discrimination legislation amongst the British public.

A link can be found below which provides more information about Mr Upadhyaya’s story:

https://eachother.org.uk/racism-1960s-britain/

Even in the 1970s, you could still have a popular television sitcom called Love Thy Neighbour which dealt with the trials and tribulations of an Afro-Caribbean family moving into a white neighbourhood. If you watch it today, you can only cringe at the racist attitudes and name calling on display (see below) – you have been warned!:

https://youtu.be/mGesyvKfAOA

This was the post-War period when Britain was suffering from acute shortages of labour and the solution adopted by successive Governments was to encourage immigration from former colonies such as Bangladesh, India, Pakistan, Sri Lanka and the British Caribbean islands.

Today, with the Equality Act 2010 firmly in place, it’s unthinkable that this type of blatant discrimination in housing could or would still take place. From time to time, however, stories are reported in the British media which highlight blatant racial discrimination in housing, but most people would now recognise that this type of behaviour is completely unlawful (see link below):

https://www.theguardian.com/money/2017/nov/08/landlord-ban-coloured-tenants-unlawful-court-rules-equality-watchdog

‘No DSS’ tenants

With this historical background, it was with some interest that I read recently about a number of legal actions (which had resulted in out of court settlements) where landlords had refused to let properties to certain individuals. These refusals had nothing to do with the racial backgrounds of prospective tenants, but the cases usefully demonstrate that letting properties can still be something of a legal minefield for landlords.

If the prohibition regarding Asian, Black and Irish people was an example of direct race discrimination (now in terms of Sections 9 and 13 of the Equality Act 2010), what about a prohibition which states ‘No DSS’ tenants? This term refers to individuals who are in receipt of State benefits such as Universal Credit whereby their rent is effectively paid by the Government.

At first you might be forgiven for thinking how such a prohibition could infringe equality laws, but dig a little deeper and think things over. The prohibition is a provision, criterion or practice (PCP) imposed by the landlord. Admittedly, people receiving State benefits are a hugely varied group: they will encompass men and women; White and Black and Minority Ethnic individuals; disabled and non-disabled people; heterosexual and LGBTI individuals; and people with religious/ philosophical beliefs and those with none.

This is to miss the point: could such a PCP be an example of indirect discrimination by reason of a protected characteristic in terms of Section 19 of the Equality Act 2010?

The answer seems to be yes: it would seem that more women than men are adversely affected by the prohibition ‘No DSS’ tenants. In other words, the prohibition is an example of indirect sex discrimination. Indirect discrimination can be understood in basic terms as hidden barriers which lead to unlawful, less favourable treatment.

Landlords may argue that they are not intentionally discriminating against women, but this is precisely the effect of their unwillingness to let properties to people receiving State benefits.

In 2017, the UK Supreme Court clarified the meaning of indirect discrimination in Essop v Home Office; Naeem v Secretary of State for Justice [2017] UKSC 27:

There is no obligation for a complainant with the protected characteristic to explain why the PCP puts her at a disadvantage when compared to other groups;
Indirect discrimination does not (unlike direct discrimination) have to demonstrate necessarily a causal link between the less favourable treatment and the protected characteristic. All that is required is a causal link between the PCP and the disadvantage suffered by the complainant and her group.
Statistical evidence can be used to demonstrate a disadvantage suffered by a group, but a statistical correlation is not of itself enough to establish a causal link between the PCP and the disadvantage suffered;
The PCP may not necessarily be unlawful of itself, but it and the disadvantage suffered must be ‘but for’ causes of the disadvantage. Put simply, if the PCP was not there, the complainant and her group would not suffer the detriment.
The PCP itself does not have to disadvantage every member of the complainant’s group e.g. some women may be able to comply with it, but , critically, more women than men cannot.
The pool of individuals to be scrutinised to assess the impact of the disadvantage should include everyone to which the PCP applies e.g. all those receiving State benefits whether they are negatively affected or not.

A link to the Supreme Court’s judgement can be found below:

https://www.supremecourt.uk/cases/docs/uksc-2015-0161-judgment.pdf

Conclusion

It looks as if the phrase ‘No DSS’ may be consigned to the history books along with the more notorious example of ‘No Blacks, No dogs, No Irish’. Speaking of dogs: a general ban on these animals might constitute another example of indirect discrimination as individuals who are visually impaired (a disability) may be less likely to be able to comply as they rely on their guide dogs.

Links to stories about the legal challenges to the PCP of ‘No DSS’ tenants can be found below on the BBC News App:

Landlords who say ‘no DSS’ breaking equality laws

“No DSS” landlords who turn down housing benefit claimants risk breaching equality laws.

Legal victories over ‘No DSS’ letting agents

Two single mothers win out-of-court settlements against letting agents refusing benefit claimants.

Related Blog Articles:

https://seancrossansscotslaw.com/2019/03/04/there-aint-nothin-goin-on-but-the-rent/

https://seancrossansscotslaw.com/2019/07/09/boxing-clever/

https://seancrossansscotslaw.com/2019/06/21/sickness-absence/

https://seancrossansscotslaw.com/2019/08/20/beardy-weirdy/

https://seancrossansscotslaw.com/2019/02/21/indirect-discrimination/

Copyright Seán J Crossan, 13 April 2020

Pay day?

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/

International Women’s Day (What’s so great about it?)

Today is International Women’s Day, but is there much to celebrate in terms of concrete progress since I spoke about this topic last year?

The answer to the question is that progress women’s equality remains very much a mixed picture. If you look at figures produced for the European Gender Equality Institute, the UK is certainly in the top 5 of selected European countries. This is in stark contrast to Central and Eastern European nations (e.g. Bulgaria, Poland and Romania). Surprisingly, Germany does less well amongst its Western European neighbours, whereas Greece and Portugal are way down the index.

A link to a gender equality index for European countries can be found below:

https://edition.independent.co.uk/editions/uk.co.independent.issue.070320/data/9384076/index.html

These figures may not be entirely surprising to regular readers of this Blog: in the first few months of 2020, I have highlighted the continuing gender pay gap (which continues to be stubbornly difficult to close) and pregnancy discrimination.

Speaking of pregnancy discrimination, two recent employment cases have highlighted how much of a problem this continues to be.

In 2019, an Industrial Tribunal (yes, they still exist in Northern Ireland) ruled that McGranes Nurseries Ltd had discriminated against one of its pregnant employees, Laura Gruzdaite, who was unfairly dismissed when she took time off work to attend a scan as part of her ante natal care. Ms Gruzdaite had informed her employer that she was pregnant.

In Northern Ireland, slightly different equality legislation is relevant to cases like that of Ms Gruzdaite, but the general objective is very similar. Had the case occurred in Scotland or England, we would have been discussing the Employment Rights Act 1996 which, of course, gives pregnant women a legal entitlement to take time off work to attend these types of appointment. In Northern Ireland, the relevant legislation is the Employment Rights (Northern Ireland) Order 1996.

As for the actual pregnancy discrimination, we would have been referring to the Equality Act 2010, but in Northern Ireland, the Sex Discrimination (Northern Ireland) Order 1976 contains the relevant law.

Ms Gruzdaite was awarded £28,000 in compensation from her former employers – significantly, £20,000 of this award represented an injury to feelings element.

Interestingly, the employer also got Ms Gruzdaite to sign a blank contract of employment which did not specify whether she was a temporary or permanent employee. All very suspect and an obvious breach of our Employment Rights Act too (and I’m certain of the Northern Ireland Order of 1996), but that’s a different story for now.

A link to the Industrial Tribunal’s decision can be found below:

https://www.equalityni.org/ECNI/media/ECNI/Cases%20and%20Settlements/OITFET%20online%20decisions%20as%20pdfs/Gruzdaite-v-McGranes-Nurseries-Ltd-July19.pdf

Pregnant woman ‘unfairly dismissed’ rules industrial tribunal

In the second case, from England, Maya Georgiev was employed by Hanover Insolvency Ltd. She had not informed her employer that she was pregnant; she had been absent from work due to pregnancy related illnesses; and she was subsequently called to a disciplinary meeting. At this meeting, Ms Georgiev explained the reasons for her absence from work, but to no avail as her manager dismissed her. This was an unfair dismissal in terms of the Equality Act 2010 and the Employment Rights Act 1996.

Ironically, Ms Georgiev would have been better protected had she disclosed her pregnancy to her employer from the outset, but when the employer became aware of her situation it should have recognised that it had a duty not to discriminate against her by reason of her pregnancy. The Employment Tribunal will hold a Hearing on remedy later this year.

A link to the decision of the Employment Tribunal in this case can be found below:

https://assets.publishing.service.gov.uk/media/5e565151d3bf7f3947cf26a5/Miss_M_Georgiev_v_Hanover_Insolvency_Limited_-2400113_2019-_Judgment.pdf

A link to a story about Ms Georgiev’s experiences can be found below on the People Management website:

https://www.peoplemanagement.co.uk/news/articles/worker-discriminated-against-after-boss-unfairly-dismissed-her-for-pregnancy-related-absences

Even in areas where progress has undoubtedly been made family friendly policies such as maternity leave – the English Court of Appeal recently ruled in Ali v Capita Customer Management Ltd and Hextall v Chief Constable of Leicestershire Police (2019) EWCA Civ 900 that it is not discriminatory to offer more generous family friendly arrangements to female employees. This may seem quite progressive on the face of things, but it continues to place the emphasis on women being the primary carers of children. It doesn’t exactly encourage a cultural shift towards more men taking time off work to care for their children.

The worst case scenario

… And finally, a rather stark reminder that, although progress for women’s rights has undoubtedly occurred, the overall picture remains very uneven. In certain parts of the world, being female means that you are more likely to be murdered. A phenomenon so prevalent in the Central American countries of Honduras and El Salvador that they refer to it as femicide.

You can find a link to this story on the Sky News website below:

https://news.sky.com/story/the-most-dangerous-place-in-the-world-to-be-a-woman-11950981

Related Blog Articles:

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

https://seancrossansscotslaw.com/2020/01/11/pregnancy-discrimination-or-new-year-same-old-story-part-2/

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

https://seancrossansscotslaw.com/2019/03/11/born-leader/