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.
Under the Scottish Government’s proposals, an individual would have been permitted effectivelyto 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 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 personin 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.
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 describesrationale 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.
Could supporters of independence for Scotland succeed in their objective without the need to hold a second independence referendum or IndyRef2? Let me put it another way: could Scottish independence be secured without the need for the U.K. Government and Parliament to grant a Section 30 order under the Scotland Act 1998?
Joanna Cherry, a leading Scottish National Party MP and QC certainly seems to think so and, as a highly competent member of the Scottish Bar, she has a legal precedent to hand.
The precedent in question is the Anglo-Irish Treaty of which led to the creation of the 26 County Irish Free State and the 6 County State of Northern Ireland. Coincidentally, it was actually the 99th anniversary of the Treaty being ratified by the Irish Parliament on 7 January 1922.
A link to an article in The Scotsman about Joanna Cherry’s views on the Anglo-Irish Treaty can be found below:
As a precedent, the Treaty is not, however, entirely unproblematic: it is an error to believe that a truly, independent Irish Republic was created in 1922 as a result of the Treaty. It was, in fact, not until 1949 that Éamon de Valera, Prime Minister (Taoiseach) of the Irish Free State felt sufficiently confident to break decisively with the United Kingdom. By this point, Britain had lost its position to the United States of America as the leading global power and former British Imperial possessions, such as the Indian Empire (modern day Bangladesh, India, Pakistan and Sri Lanka), had been granted independence.
More controversially, the Treaty was the direct result of Irish Republicans pursuing an armed struggle against the United Kingdom between 1919 and 1921 (the War of Independence) which had forced the British to come to the negotiating table. Although, it has to be conceded that, many members of the United Nations have gained their independence fully or partially as a result of armed struggles.
Arguably, in 1918-19, the United Kingdom was still the pre-eminent global power – it had emerged as a victor in the First World War and with an enlarged Empire.
That said, this situation hid considerable political and economic weaknesses on the part of the British; and Republican commanders, like Michael Collins and Éamon de Valera, recognised this and were determined to take full advantage in order to further Irish independence. The Anglo-Irish Treaty from the British perspective was, therefore, a considerable concession to Irish nationalism.
Where Collins and de Valera parted company was in their reading of where the Treaty might eventually lead in the immediate aftermath of the War of Independence. The Pro-Treaty Republicans (led by Collins) were convinced that this was the best outcome that they could hope to achieve in the current circumstances whereas the Anti-Treaty Republicans (led by de Valera) felt that one more push would secure the Irish Republic for which they yearned.
Michael Collins, de Valera’s comrade and later bitter enemy, made a pragmatic choice to back the Treaty (he had, after all, put his signature to the document).
Collins’ principal argument was that, although the Treaty fell far short of Republican demands, it provided the space to obtain greater freedom for Ireland. His beliefs would ultimately cost him his life, but his Pro-Treaty stance would prevail and would define the Island of Ireland politically and geographically for the next 100 years (the Island of Ireland is still split to this very day).
De Valera and his supporters were outraged because the Treaty represented a humiliation and a betrayal of their purist nationalist vision of a united Republic of Ireland comprising all 32 Counties.
In modern constitutional terms, Collins would be regarded as a gradualist. As a matter of political necessity, de Valera too would be forced to adopt a gradualist approach in his quest for the Holy Grail of Irish independence, but this would only come about following a crushing military defeat of the Anti-Treaty camp at the hands of Free State Forces.
The repentant revolutionary
In 1926, de Valera made a significant decision by abandoning the armed struggle by entering Irish constitutional politics when he established Fianna Fáil. Until that time, de Valera and his Republican supporters had followed a policy of absentionism whereby they refused to take seats in the Irish Parliament. For the nearly the next quarter of a century, de Valera and Fianna Fáil would work towards the creation of an Irish Republic using the constitutional apparatus of the Free State.
This dramatic change of strategy was due, in a large part, to de Valera’s defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.
A constitutional anomaly?
According to the eminent Irish historian, Tim Pat Coogan*, the Irish Free State was something of a constitutional anomaly in the sense that it had an imprecise legal status when compared to the other self-governing Dominions of the British Empire such as Australia, Canada, New Zealand and South Africa.
According to David Lloyd George, Prime Minister of the United Kingdom and one of the signatories of the Anglo-Irish Treaty, the term ‘Dominion’ was “something that has never been defined by Act of Parliament, even in this country, and yet it works perfectly.” (Mansergh, 1934**)
The Irish people would not share Lloyd George’s confident assertion: they knew what the Free State was not i.e. the free and independent Irish Republic for which many of them had fought. Lloyd George and his British co-signatory, Winston Churchill, were fiercely opposed to the creation of anything resembling an Irish Republic.
In any event, whatever its precise legal status, the creation of the Irish State had come about in profoundly different (not to say stark) circumstances from the other Dominions of the British Empire. These other Dominions had come into existence by way of an evolutionary process marked by incremental change. There can be no doubt that the Irish Free State had been created as a result of a violent revolutionary struggle.
The territory of the Free State would initially comprise all 32 Irish Counties, but the 6 Northern Counties with their Protestant and Unionist majorities speedily exercised their right to secede from the new State. The partition of the Island of Ireland, of course, continues to this very day.
Equally distasteful to Republican sentiments was the fact that King George V and his successors would continue to be King in Ireland (the Irish Head of State). Still more galling for Irish Republicans, those elected members of Dáil Éireann (the lower House of the Irish Parliament) and Seanad Éireann (the upper House of Parliament) would have to take a personal oath of allegiance to George V and his successors:
The oath to be taken by members of the Oireachtas [Irish National Parliament] shall be in the following form:—
I _______________ do solemnly swear true faith and allegiance to the Constitution of the Irish Free State as by law established, and that I will be faithful to H. M. King George V., his heirs and successors by law in virtue of the common citizenship of Ireland with Great Britain and her adherence to and membership of the group of nations forming the British Commonwealth of Nations.
Such oath shall be taken and subscribed by every member of the Oireachtas before taking his seat therein before the Representative of the Crown or some other person authorised by him.
The King and his successors would be represented at official functions by a Governor General. It is not an understatement to say that the British Crown was an anathema to Irish Republicans – irrespective of their views on the Treaty.
There would also be a continuing British military presence on Irish Free State territory, namely, the 3 naval bases of Fort Dunree (County Donegal) and Bere and Spike Islands (County Cork). The Free State Government would eventually gain control of these bases in 1938 – a fact which made Winston Churchill, then a backbench Conservative MP, apoplectic. He would argue, not without justification, that these bases would be vitally important for Britain in the event of any future hostilities with Nazi Germany.
All of the above represented significant obstacles to the creation of an independent Irish State and it is often now forgotten that it was the genius of de Valera who used the constitutional architecture of the Treaty to undermine British influence in the 26 Southern Irish Counties.
In 1922, the prospects of the creation of an Irish Republic were by no means certain. The Irish Free State, created by the Anglo-Irish Treaty, was undoubtedly a constitutional anomaly.
Éamon de Valera was forced to make the long journey from revolutionary firebrand to establishment politician. This was due, in a large part, to his defeat in the Irish Civil War (1922-23) where opposing wings of the Irish Republican Army and Sinn Fein had split and quarrelled (violently) in their response to the Anglo-Irish Treaty.
It would take considerable skill and patience on the part of de Valera and his supporters in Fianna Fáil to achieve the goal of an Irish Republic. It should be recalled that it was only in 1949 that an Irish Republic (minus the 6 Northern Counties) came into existence.
These are factors which supporters of Scottish Independence who are attracted to Joanna Cherry’s argument would be well advised to study in detail. Cherry advances an interesting precedent, but it is not without its problems. The Anglo-Irish Treaty of 1921 does not provide a straight road to Scottish independence. There were many twists and turns in this road before a sovereign Irish Republic emerged and, even, then this was a lesser entity due to the decision by the Northern Six Counties to remain part of the U.K.
The Irish Civil War by Tim Pat Coogan and George Morrison (Weidenfeld & Nicolson, 1998)
The Irish Free State: Its Government and its Politics by Nicholas Mansergh (George Allen & Unwin, 1934). Available at:
Author’s note dated 17 March 2021: the Appeal Court of the High Court of Justiciary has since reinstated the convictions of the threemen involved in this case. Please see the link below to the High Court’s judgement:
A debate I’ve been having this last week with both my First and Second Year students has concerned the tension between the rights to free speech and freedom of expression and the right not to suffer discrimination – all of which are protected under the European Convention on Human Rights.
Can you say and do what you want even if such actions cause offence to another person? Up to a point, yes, but there are limits to freedom of speech and freedom of expression even in a democratic society which highly prizes such important examples of human rights. If you cross the line which divides acceptable from unacceptable behaviour you may well find that you are accused of a public order offence or, more seriously, hate crime.
To some extent, a case heard last week by the Criminal Division of the Sheriff Appeal Court in Edinburgh indirectly touched on some of these issues (see the Appeals ofDaniel Ward, Martin Macaulay and Ryan Walkerv Procurator Fiscal, Glasgow  SAC (Crim) 006).
The appeals were submitted by three men who had attended a European Champions’ League qualifying tie at Celtic Park, Glasgow on 19 July 2017.
Celtic FC, which has a predominantly Roman Catholic fan base, was playing against Linfield from Belfast, a Club which is mainly supported by Protestants in Northern Ireland. The men had worn T shirts with Irish Republican imagery to the match – undoubtedly a provocative gesture on their part.
To say that the potential for sectarian unrest at this fixture was very high would be something of an understatement. There had, in fact, been trouble between the opposing fans at the first leg of the tie in Belfast the week previously.
Proscribed not prescribed
The complaint issued by the Procurator Fiscal against Messrs Ward, Macaulay and Walker was set out in the following terms:
“On 19 July 2017 at Celtic Park Football Stadium, Glasgow G40 3RE you MARTIN MACAULAY, DANIEL WARD and RYAN WALKER did conduct yourselves in a disorderly manner within said Celtic Park Football Stadium in that you did attend at a regulated football match there whilst wearing a shirt which displayed an image of a figure related to and in support of a prescribed (sic) terrorist organisation namely The Irish Republican Army (IRA) and commit a breach of the peace.“
It is worth highlighting a particular error in the above Complaint issued by Glasgow Procurator Fiscal’s office: there is a very important difference between the words prescribed and proscribed (the correct term which denotes an organisation e.g. a terrorist group which is banned by the State). Whether this error was a typo or ignorance on the part of someone at the Fiscal’s office, I’m unsure.
At the conclusion of their trial at Glasgow Sheriff Court in February 2020, Messrs Ward, Macaulay and Walker were convicted of a breach of the peace.
A large part of the prosecution’s evidence against the trio relied on the testimony of three Police Officers who were on duty at the match. Two of the officers (Constables Stirling and Taylor) served with Police Scotland and the third officer (Constable Nixon) served with the Police Service of Northern Ireland.
Now, you would have been forgiven for thinking that the Crown had met the requirement of corroboration – which is a fundamental principle of Scots criminal law. Corroboration is the duty placed on the Crown prosecutor to produce at least two independent sources of evidence which will prove beyond reasonable doubt that the accused is guilty.
The Sheriff at Glasgow certainly thought so as all three officers were able to describe the imagery displayed on the T-shirts worn by the three co-accused i.e. a man with aviator sunglasses wearing a black beret and a camouflage scarf with the Irish tricolour as a background.
As one of Scotland’s leading criminal defence lawyers, Donald Findlay QC interviewed as a participant in BBC Scotland programme Too young to die – Crime Scenes Scotland: Forensic Squad (first broadcast in 2014) observed:
“The trial system that we have – whether you like it or not – is an adversarial system and it is for the Crown to overcome every legitimate hurdle that we put in the way of them proving their case. Thereby we hope that, if someone is convicted, the conviction is justified.”
Mr Findlay goes on to remark that:
“My part in the law is to say to the Crown that if you want to prove guilt, you’ve got to prove it beyond a reasonable doubt and we’ll do our best to make sure that you do. I can live with that – whatever the outcome.”
Appeal against conviction
The three co-accused appealed on a point of law in terms of Section 160 of the Criminal Procedure (Scotland) Act 1995 that the Sheriff had been wrong in his failure to consider their arguments, namely:
1. That the T-shirts did not convey support for a proscribed terrorist organisation (the IRA); and
2. Their behaviour at the football match was not a breach of the peace.
The testimony of each of the officers on the question of the imagery displayed on the T-shirts was highly consistent, but was it safe to say that the value of the evidence presented by each witness should be treated equally?
Alas for the Crown, this is where a major problem emerged. Absolutely no disrespect to the two Scottish Police officers, but they were not in a position to speak with authority on whether the three men by wearing these T shirts were expressing support for a proscribed terrorist organisation.
Significantly, the Sheriff Appeal Court drew specific attention to the decision in Smith v Donnelly 2002 JC 65 which emphasisesthat “ithas been clear beyond doubt that a charge of breach of the peace requires to specify the conduct involved.”
Only Constable Nixon with his direct experience of policing in the febrile environment of Northern Ireland was capable of validating the charges laid out in the complaint. Unfortunately, Constable Nixon’s testimony alone was not sufficient to meet the requirements of corroboration. In a criminal trial, the prosecution case requires certainty not probability.
Reference was made specifically to Lord Kirkwood’s remarks in Fox v HM Advocate 1998 JC 94:
“It is a cardinal principle of our common law that no one can be found guilty of a crime upon the uncorroborated evidence of a single witness, however credible or reliable that witness may be. There must be evidence from at least two separate sources which is capable of establishing the facta probanda beyond reasonable doubt.”
Consequently, the Sheriff Appeal Court quashed the convictions of the three men. This does not mean that the Sheriff Appeal Court is giving the green light to football fans to display such imagery on T shirts and other garments. Far from it: as the judges commented:
“In the particular circumstances which pertained in this case, we would have regarded the wearing of a T-shirt which depicts an image in support of a proscribed organisation, such as the IRA, as so flagrant that the necessary inference could be drawn from it, in the absence of evidence of alarm or annoyance. It is difficult but to conclude that the wearing such T-shirts amounted to a deliberately provocative gesture directed towards the Linfield support. The wearing of such T-shirts in near proximity to the opposing supporters within or around a football stadium is conduct which, if proved, would in our view present as genuinely alarming and disturbing, in context, to any reasonable person.”
Had the prosecution focused on corroborating the element of the charge which emphasised support for a proscribed terrorist organisation, the convictions of the three men might well have been upheld.
Football fans would do well to remember that their right to freedom of expression or freedom of speech could be severely restricted by the Authorities in order to prevent the commission of a crime, such as hate crime or public order offences. If you are still in any doubt, let me point you in the direction of the decision in an earlier appeal judgement of the High Court of Justiciary which reminds us that wearing a T shirt with paramilitary imagery can constitutea breach of the peace (see Maguire v Procurator Fiscal, Glasgow  HCJAC).
A link to the judgement of the Sheriff Appeal Court can be found below:
On Monday 15 June, 2020, the US Supreme Court issued a very important ruling (Bostock v Clayton County, Georgia (Case 17-1618)) that there can be no discrimination on the grounds of a person’s sexual orientation or that they have (or are undergoing) gender reassignment. An attempt by an employer to dismiss a gay person or a transgender person will be an example of unlawful discrimination.
Surprise, surprise you might say: what took the Supreme Court so long?
Such discriminatory behaviour, the US Supreme Court has now declared, is a breach of Title VII of the US Civil Rights Act 1964 (which was enacted by Congress as part of President Lyndon B Johnson’s Great Society programme).
And this is where the American approach to the issue of discrimination on the grounds of a person’s sexual orientation differs quite markedly from the UK.
Title VII of the Civil Rights Act 1964 states that it is:
“unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.”
From a British legal perspective, the word “sex” in Title VII of the American legislation is problematic when applied to discrimination involving a person’s sexual orientation.
Quite simply, in the UK, we would understand the word “sex” in discrimination law as applying to an individual’s gender whether they are male or female; or identify as being male or female.
A link to the US Supreme Court’s judgement can be found below:
Readers of this blog might not regard the US Supreme Court’s decision in Bostock v Clayton County, Georgia as in any way unusual. After all, in the United Kingdom and across the EU 27 member states, laws have been in place for a considerable period prohibiting unlawful discrimination on the grounds of sexual orientation.
Although the UK has now left the EU, the legislation protecting the LGBTI communities remains very much in place – by way of the Equality Act 2010 and other legislative instruments such as Article 19 of the Treaty on the Functioning of the European Union (primary legislation) and numerous Regulations and Directives (secondary legislation). The provisions in the Equality Act are, of course, an example of Westminster legislation and will remain hardwired into our legal system – for the time being at least.
The continuing status of European Treaty Articles, Regulations and Directives (in relation to the laws of the UK) will, of course, be up for debate when the Brexit transition period ends, as expected, on 31 December 20020.
The Equality Act 2010
Section 12 of the Equality Act 2010 addresses the issue of a person’s sexual orientation. This is a protected characteristic under the Act and means a person’s sexual orientation towards:
persons of the same sex
persons of the opposite sex
persons of either sex.
Sexual orientation discrimination: the historical perspective
Before 1 December 2003, in the United Kingdom, it was not unlawful to discriminate against an employee or potential employee by reason of that person’s sexual orientation. The situation changed dramatically with the introduction of the Employment Equality (Sexual Orientation) Regulations 2003. The relevant law now being contained in the Equality Act 2010, which prohibits less favourable treatment on the grounds of a person’s sexual orientation generally and such protection is no longer confined to the field of employment.
It should be noted, of course, that the Employment Equality Regulations were primarily brought into force to introduce protection for gay, lesbian and bi-sexual people. If, on the other hand, you were heterosexual, you were very unlikely to face discrimination in the work place due to your sexual orientation.
The primer for this change to the law in 2003 was the European Union’s Employment Equality Directive (as a result of the Treaty of Amsterdam 1999) which meant that the UK, as a member state, had to introduce legislation in order to guarantee that people who had suffered less favourable treatment in relation to employment had a form of legal redress. The Employment Equality Regulations 2003 (and now the Equality Act) implemented this duty on the part of the UK.
Employment Equality Directive was limited in its scope because it applied (unlike the more expansive Racial Equality Directive) to just two sectors: employment and vocational training.
Sexual orientation not sex
It is perhaps now instructive to examine the failure of UK laws to provide protection to individuals who suffered sexual orientation discrimination prior to the Employment Equality Regulations coming into force.
In Macdonald v Advocate General for Scotland and Pearce v Governing Body of Mayfield School  UKHL 34, the House of Lords held that discrimination on the grounds of a person’s sexual orientation was not covered by existing UK equality laws (specifically the area of sex or gender discrimination then contained in the Sex Discrimination Act 1975).
Macdonald was dismissed from the Royal Air Force because he was homosexual or gay. Pearce, a teacher, had suffered an ongoing campaign of harassment while working at Mayfield School because she was a lesbian. Both Macdonald and Pearce claimed that the treatment that they had suffered was an example of direct sex discrimination.
Both claims failed because the treatment suffered by both individuals was an example of direct discrimination on the grounds of their sexual orientation – not because of their sex or gender. At the time of this appeal to the House of Lords, discrimination in employment on the grounds of a person’s sexual orientation was not prohibited by UK equality laws.
In its judgement, the House of Lords drew attention to the ironic fact that a new equality law prohibiting sexual orientation discrimination would soon be introduced, but this admittedly would be too late for Macdonald and Pearce! Small comfort indeed!
Had the cases occurred today, the employers would be liable for direct discrimination on grounds of sexual orientation in terms of Section 12 of the Equality Act 2010.
The perspective of the Court of Justice
Before the European Union’s Employment Equality Directive, the Court of Justice had been reluctant to lay the basis for greater legal protection in relation to a person’s sexual orientation.
In Case C-249/96 Grant v South West Trains Limited  ECR I-621, Lisa Grant had argued that the failure by her employer to extend a concessionary ttavel scheme (worth £1,000 per year) to Gillian Percey, her same sex partner, with whom she had been in a stable relationship for more than 2 years, was an example of unlawful, less favourable treatment. The employer permitted heterosexual spouses (including common law spouses of more than 2 years standing) to enjoy the benefit of the travel scheme. Grant’s predecessor in the post had been male and his female partner had benefited from the travel scheme.
Grant chose her male predecessor as her comparator as part of an equal pay claim. It is important to appreciate that Grant was bringing her claim as a sex or gender discrimination legal action. Although Advocate General Elmer was broadly supportive of the couple’s claim that they had suffered discrimination under what is now Article 157 of the Treaty on the Functioning of the European Union and the Equal Treatment Directive, the Court of Justice decided not to follow this Opinion.
The Court stated that two men in a same sex relationship would have been treated in exactly the same way as Grant and Percey by the employer. South West Trains did not wish to extend concessionary travel to same sex partners of employees and, currently, there was nothing unlawful about this policy as neither UK or EU equality laws prevented discrimination by reason of a person’s sexual orientation. At the time that this case was decided, it should be appreciated that same sex relationships in the UK were not legally recognised in terms of civil partnership or marriage – such legal recognition was still some way away.
To come back full circle, the European Union would, of course, later redress the situation with the Employment Equality Directive which led to the introduction of the Employment Equality (Sexual Orientation) Regulations 2003 into UK law. Had these Regulations been in force when Lisa Grant commenced her legal action against South West Trains, these would have given her and Gillian Percey significant legal protection from the discriminatory action of her employer. Admittedly, this was scant consolation for them and thousands of other same sex couples who experienced less favourable treatment in employment.
The European Convention on Human Rights
The provisions of the Convention have been implemented into Scots law via the Human Rights Act 1998 and the Scotland Act 1998 which means that an individual will enjoy substantial legal protection in relation to his or her sexual orientation. Article 8 of the Convention places a duty on a public authority to have respect for a person’s private life. Fuirthermore, Article 14 of the Convention confers a general right on individuals not to be subjected to discrimionation. Employers who are defined as a public authority will have to ensure that they comply with these provisions. Private employers will also have to be aware of these provisions because there is nothing to stop an employee bringing a discrimination claim against the UK Government if some loophole exists which permits the employer to behave less favourably towards them on the grounds of their sexual orientation.
Interestingly, in Macdonald v Advocate General  (discussed above), the employee did attempt to argue that his dismissal by the Royal Air Force, by reason of his sexual orientation, was a breach of the European Convention, but this argument failed because the Convention had not yet been implemented by the Westminster Parliament.
Today, of course, Macdonald would have a very strong claim against his employer for the treatment that he had suffered. Although the war may ultimately have been won, this was a battle that the unfortunate Macdonald would lose.
When Black lives didn’t matter … that much – except perhaps merely as a commodity – is something that British society is having to confront in June 2020. Humans could be property to be bought and sold – quite legally.
Statutes of historical personages have been torn down or defaced in this country because of the death of George Floyd, an African American, in Minneapolis, USA. Unless you have been living in a vacuum, Mr Floyd died at the hands of a Minneapolis Police Officer on 25 May 2020.
Black Lives Matter
The protests that have kicked off around the world in the wake of the death of Mr Floyd have stirred memories of Britain’s murky past in the matter of race relations. It is not something at which this country can take pride.
Some readers may recognise the picture by JMW Turner at the top of this Blog, but if you don’t it relates to a particularly egregious and shocking incident in British legal history – but more about that later.
I’m thinking, in particular, about Britain’s role in the Trans-Atlantic Slave Trade. It may come as a surprise to many Britons that this country was an active participant in the mass enslavement and trafficking of our fellow human beings to the plantations, factories, mills and mines of the New World or the Americas.
It seems almost unthinkable today that such practices were allowed to flourish when we have strong laws in place prohibiting slavery (e.g. Article 4 of the European Convention on Human Rights as implemented by the Scotland and Human Rights Acts 1998).
Sir John Hawkins, Elizabethan Merchant Adventurer (1532-96)
As far back as 1562, Sir John Hawkins, cousin of the more famous Sir Francis Drake, had sailed to West Africa on trading voyage when he captured a Portuguese slave ship. After securing his human cargo, Hawkins then set sail for the Caribbean – then part of the Spanish Empire – to find buyers for his merchandise. Although England and Spain were in an effective state of war, the Spanish colonists were more than happy to do business with Hawkins.
And so began, the lucrative trade in human beings from the British perspective: Hawkins would carry out another two trading voyages to the Spanish Empire. On his third voyage (1567-69), he nearly came to grief when he tangled with a Spanish naval squadron at the Mexican harbour of San Juan de Ulúa (near Vera Cruz), narrowly escaping death. Many of his men were not so lucky, but that’s another story.
Although Hawkins was responsible for the enslavement and trafficking of hundreds of Africans – and by the way, the English Crown also got its cut from these enterprises – his activities were really minuscule when compared to what would come later.
An image of John Hawkins’ coat of arms (complete with the image of an enslaved African or a Moor- the name generally given to inhabitants of North Africa) can be seen below:
British participation in the Trans-Atlantic Slave Trade would really hit its stride as a result of the Treaty of Utrecht 1713-1715 which ended the War of the Spanish Succession. Under the terms of the Treaty (Part X), the British gained possession of the naval fortress of Gibraltar and the Island of Menorca. More significantly and, from a purely profitable point of view, the British also took control of the Asiento for an initial period of 30 years.
The Asiento was the hugely lucrative contract or monopoly to supply Spain’s American Empire with African Slaves. Queen Anne (1702-14), the last Stewart monarch of the British and Irish Isles would hold a 22.5% stake in the company which administered the Asiento according to Hugh Thomas in his magisterial The Slave Trade: History of the Atlantic Slave Trade, 1440-1870 (Simon Schuster: 1997; First edition).
For nearly the next century, British vessels would carry millions of enslaved African (men, women and children) via the horrific Middle Passage to destinations in the Americas to be brutalised and exploited by their White masters.
By this time, of course, Scotland and England had entered into political Union in 1707 and this meant that Scottish merchants and financiers could take full advantage of what became known as the Triangular Trade. Ships would sail from British ports, laden with trade goods, heading for the coast of West Africa; they would pick up their human cargoes and take the Middle Passage to the Americas where the slaves were sold; then the return voyage could begin with the ships laden with tobacco, rum, cotton etc for sale in Britain.
Altogether it was a very profitable enterprise and vast wealth flowed into Britain.
Needless to say, the conditions which the slaves endured was horrific, with them being crammed into the holds of the ships for up to six weeks. Many slaves would not survive the passage, succumbing to disease and infection.
A depiction of conditions on a slave ship can be seen below:
The Zong Massacre
This is where JMW Turner’s picture (The Slave Ship) heaves into view. It is the depiction of a shocking event which involved the crew of a British ship called the Zong. In 1781, the Zong, which belonged to a Liverpool merchant syndicate, was carrying slaves from West Africa to the Americas. The lives of the slaves were insured, but not in the way that we think of modern life insurance: they were cargo or excess baggage; pure and simple. Slaves were goods or beasts of burden.
The Captain, Luke Collingwood, or another crew member had made what would turn out to be a fatal error (for some) in their navigational calculations and the Zong was way off course from Jamaica. With supplies of drinking water becoming evermore scarce, a fateful decision was made: a large number of slaves (over 130) would be thrown overboard in order to conserve supplies. Murder? Not quite … jettisoning excess baggage/livestock? This was an acceptable practice on slave ships and insurance had been developed to cover such eventualities.
The owners of the Zong would later attempt to recoup their losses by claiming under their policy of insurance. In the infamous case of Gregson v Gilbert  English Reports 83, the syndicate would be forced to take legal action against the insurers who were refusing to pay compensation. Before anyone misunderstands matters here, this was purely a commercial question of liability for lost cargo, not human lives, certainly not a question of human rights.
At first instance, the court found for the syndicate owners and the insurers were ordered to pay compensation to cover the losses. On appeal, however, the syndicate would ultimately lose the case as Lord Justice Mansfield and his fellow judges would rule that the Captain and the crew had been negligent.
Lord Mansfield had been the judge in an earlier case – Somerset v Stewart (1772) 98 ER 499 – in which the issue of the freedom of an enslaved African, James Somerset was at stake. For abolitionists, this case represented a victory because Somerset was allowed to go free, but whether it represented a general proposition that English common law did not permit slavery within the territory of England has always been the subject of some debate.
Hardly a resounding victory for human rights, but this case would serve as a rallying call to arms for British anti-slavery activists, like the ex-slave, Olaudah Equiano (born in modern day Nigeria) and Granville Sharp.
Sharp later attempted to have crew members of the Zong charged with murder, but the Solicitor General for England, John Lee made a very telling statement:
“What is this claim that human people have been thrown overboard? This is a case of chattels or goods. Blacks are goods and property; it is madness to accuse these well-serving honourable men of murder… The case is the same as if wood had been thrown overboard.”
Insurers also covered losses (within limits) incurred by slavers who had to kill rebellious slaves while in transit. I well remember the late Professor Robert Burgess regaling the class with the tale of a failed rebellion where the owners of the ‘cargo’ successfully claimed from the insurers the value of the slaves who had been killed by their captors. The sting in the tale was that compensation was not payable for the slaves who had committed suicide following the failure of the rebellion. The policy did not cover such eventualities (see Jones v Schmoll (1785) 1 Term Rep 130n). A human tragedy reduced to an interpretation of the wording in an insurance document.
You can read more about insurance and slavery by accessing the link below:
From 1788 until 1833, the Westminster Parliament would pass legislation chipping away at the edifice of slavery in the British Empire. The practice of enslaving one’s fellow human beings would not be achieved overnight, but the road to eventual abolition would be under construction via the following statutes:
Regulated Slave Trade Act 1788 (or Dolben’s Act)
Abolition of the Slave Trade Act 1807
Slavery Abolition Act 1833
The Act of 1788 did not abolish the practice of slavery, but it laid down limits on the numbers of slaves that could be carried in accordance with the vessel’s tonnage. It was the first British Act of Parliament which attempted to curtail some of the worst practices of the Slave Trade.
More significantly, in 1807, the trade in slaves in the British Empire was abolished. Britain was not the first European country to do this – the Kingdom of Denmark had done so in 1792, although this law did not come into force until 1803. It is important to note that neither the Danes nor the British prohibited the ownership of slaves – this was still a perfectly legal practice.
Eventually, in 1833, the Westminster Parliament passed the law which would abolish slavery – eventually – as a legal practice in the territories of the British Empire. I say eventually because the institution of slavery would not be abolished at the stroke of the Royal Assent. Compensation for loss of property rights would have to be paid to slave owners (great and small) and there would be a transitional period (from 1838 until 1840) in which the slaves would migrate to their new legal status of freed men and women.
In total, it is estimated that the British Government established a fund of some £20 million (£16/17 billion in today’s values) which would be used to compensate soon to be former slave owners.
Ironically, the British would become ardent opponents of slavery throughout the world and they would use their considerable global influence to eradicate the trade and the institution whenever they could.
That is perhaps the problem which has contributed to a sense of collective amnesia amongst the British. Yes, considerable pride is taken when it comes to the abolition of slavery, but memories are extremely hazy when it comes to activities of British mercantile interests which made fortunes from the opportunities afforded by TheAsiento.
For more information about the background to the abolition of slavery in the British Empire, please find a link below to an article in The Guardian:
As the events of the last week have shown, reminders of Britain’s links to the Trans-Atlantic Slave Trade are everywhere: Edward Colston’s statute in Bristol; Henry Dundas’ statute in Edinburgh (who delayed the abolition of slavery by some 15 years); and Robert Milligan’s statute in East India Docks, London. Furthermore, British Street names reflect connections with prominent slave traders and their interests in the West Indies: Cochrane Street and Jamaica Street in Glasgow. The legacy of slavery is all around us, but for so long we have been wilfully blind or forgetful about this.
In 2020, it is difficult for us to appreciate how pervasive the institution of slavery was. It had been around since the earliest human communities and it still exists. Great scientists such as Sir Isaac Newton (1643-1727) invested heavily (and ultimately unwisely) in the infamous South Sea Company which traded in slaves (amongst other goods). From the British Royal family all the way down to ordinary individuals, investing in slavery could be a profitable financial activity.
Anti-Slavery International estimates that, today, there are more people (some 40 million individuals) living in conditions of modern slavery or unfree labour than there were when the Slavery Abolition Act 1833 was passed by Parliament.
If anything positive comes from the death of George Floyd, hopefully it will make us more aware of the fact that there was a time when Britain was not a beacon of civilised values and although Britannia undoubtedly ruled the waves, but many people could be slaves.
By Louise Aitken, Siobhan Donaghy, Kieran Flynn and Elisha Masini (Editor: SJ Crossan)
Privacy is a human right and both the Scotland Act 1998 and the Human Rights Act 1998, implemented provisions of the European Convention on Human Rights (Article 8) directly into national. The employment contract, consequently, is not in any way exempt from human rights issues (see the judgement of the European Court of Human Rights in Bărbulescu v Romania 5 September 2017 (Application no. 61496/08). The European Union (EU) has also had a major influence on the development of privacy laws e.g. General Data Protection Regulations.
Privacy has become a major issue in recent years, particularly due to the rise of social media use. The increasing use of IT systems and the internet by organisations and their employees are key factors in the expansion of laws regarding privacy.In Bărbulescu, the employer had violated the employee’s rights to privacy in terms of Article 8 of the European Convention in the way that it had monitored the company’s email system. Privacy in the work-place is a major issue for both employers and employees. Some of the most important areas of law that govern privacy are to be found in the areas of human rights, data protection, and freedom of information.
It is very important to establish from the outset that employees do not have an absolute right to privacy and there may be situations within and outwith the work-place where the employer has a legitimate interest in the activities of their employees – especially if such behaviour could amount to gross misconduct.
Gross misconduct relates to serious behaviour on the part of the employee that is deemed so bad that it destroys any relationship or trust between the employer and the employee. Gross misconduct warrants instant dismissal without any notice or pay.
Section 94 of the Employments Rights Act 1996 states that an employee has the right not to be unfairly dismissed.
Section 95 of the Employment Rights Act 1996 states that an employment contract can be terminated by means of the company through purpose of the employee’s conduct. Such a dismissal or termination of contract should be viewed as a fair dismissal (Section 98: ERA 1996).
Acts or omissions by the employee which would be classified as misconduct, such as theft, alcohol or drug use, poor discipline, continually missing work without justification or poor performance are all potential exceptions to this right.
Matt Simpson former officer in the Cumbria police force is one of many who have been caught out due to things such as inappropriate text messages. In 2020, PC Simpson was dismissed from the force after he was found to be having a secret, sexual relationship while on duty. It first came to light after the new partner of the female, with whom Simpson was involved, found text messages that had been sent to her. The new partner of Simpson’s lover then went to the police authorities with this information to make a formal complaint.
A hearing was held to establish if PC Simpson was guilty of any wrongdoing. The panel found that this was a dereliction of Simpson’s duties and he was guilty of gross misconduct – not only due to having this relationship during the time when he was meant to be working but also due to him using confidential police system to uncover information about the women purely because he was “curious”. As well as this Mr Simpson also visited the female around 20 times when on shift and had vital police equipment with him while visiting such as a body camera and a taser device. The fact that this whole affair had come to light via Simpson’s private text messages was neither here nor there: this was an aspect of Simpson’s private life in which his employers had a legitimate interest and he had been carrying out his romantic activities during his employment.
A link to the story on the BBC website can be found below:
In PC Simpson’s case, he clearly performed his duties inadequately and was guilty of very poor discipline. He was aware of the consequences of his actions. By involving himself with the female, he was making himself unavailable at times such as an emergency. Dereliction of duty is defined as the failure to fulfil one’s obligations. Here, PC Simpson clearly failed to do his job in a proper and professional manner and he could have been potentially negligent should an emergency have risen.
A further example of an employee committing acts of misconduct occurred in Adesokan v Sainsburys Supermarket Ltd  EWCA Civ 22. Mr Adesokan was hired by Sainsbury’s as a Regional Operation Manager when he was in charge of ‘Talkback Procedure’, a key company policy which involved all members of staff giving information in confidence about their working environment and relationships with other colleagues. Mr Adesokan discovered that his HR manager had tried to manipulate the Talkback scores within his region by sending an email to five store managers telling them to seek feedback only from their most enthusiastic colleagues. Mr Adesokan asked the HR manager to “clarify what he meant with the store managers”, but the HR manager never responded. Mr Adesokan failed to follow this matter up and he was later dismissed by his employer for not taking action to confront the HR manager’s deliberate “manipulation” of the survey data.
A subsequent investigation into the matter led to Mr Adesokan’s eventual summary dismissal for “gross negligence on his part which is equivalent to gross misconduct”. Mr Adesokan brought a claim for breach of contract with regard to his notice period. The English High Court found that although he was not dishonest, his failure to take active steps to remedy the situation had damaged Sainsbury’s trust and confidence in him, which was sufficient to warrant the sanction imposed. The English Court of Appeal subsequently affirmed the decision of the High Court.
The Adekosan case was remarkably similar to that of PC Simpson where no other option was available to the employer as there was a complete loss of trust.
Activities outwith working hours
What individuals do with their own time is largely their choice (as long as they stay on the right side of the law). It is exceedingly difficult, however, for many people to do much these days without using social media or a mobile phone. Activities which used to be very much private are, consequently, at a much greater risk of public exposure in the virtual world in which we find ourselves living in 2020.
Employees can carry out many activities in private that may get them in trouble with their employers and have serious consequences for them. This might include, for instance, acts of gross misconduct committed in private which result in reputational damage to the employer. Consequently, the employer may have no alternative but to contemplate dismissal of the employee.
There is a lot of case law with regard to employees being dismissed from situations that have happened outside the workplace, an example would be the well-known case of X v Y  EWCA Civ 662.
The facts of the case are as follows:
A charity employee who worked with young offenders committed an indecent act with another male in a public toilet at a motorway service station. He was put on the Sex Offenders’ Register as a result of receiving a police caution. The worker had not been straightforward with the Police when they asked questions about his job and, compounding this, he failed to inform his employer about the situation. Later, his employer decided to terminate his contract and the dismissal was once deemed to be fair. The reputational harm which the employer suffered due to the fact of the employee’s failure to be completely honest about what had happened was an enormous element of the decision to dismiss.
The English Court of Appeal was firmly of the view that the employee’S argument that he had a right to privacy (on grounds of his sexual orientation) in terms of Article 8 of the European Convention on Human Rights was not applicable here as the indecent act was not of a personal nature due to the fact it had been carried out in a public toilet.
In some cases, however, it may be problematic to dismiss the ‘offending’ employee who may be involved in activities which come under the protected characteristics of the Equality Act 2010 e.g. philosophical beliefs or freedom of speech laws in terms of the European Convention on Human Rights.
One example of this was reported by The Independent regarding Dr Gunnar Beck, a German national and a candidate for the Alternative for Germany (AfD), a far right political party.
Dr Beck was employed at School of Oriental and African Studies (SOAS), (part of the University of London) as a law lecturer. A number of his students and colleagues were enraged after discovering that he was an AfD candidate for a German seat in the European Parliamentary Elections in 2019.
Students and fellow lecturers organised protests arguing that Dr Beck should be fired from his position and for his employer to justify its part “in facilitating his far-right politics”. His colleagues from the School of Law stated that they vehemently oppose the AfD and its policies and wished to dissociate themselves completely from the people who support and advocate the Party.
The members of AfD are well-known for making provocative remarks concerning the actions taken by the Nazis. They targeted climate change activist, Greta Thunberg as part of their attempts to deny climate change.
Employees at the University of London went on to say that they were making their views public since they “recognise the importance of not being complicit in the normalisation of reactionary, right-wing populism.” A declaration by the students’ union at the university asked why Beck chose to work at a university “who hold and support so many of the identities he wants to see diminished”.
The Acting General Secretary of the University and College Union, Paul Cottrell stated that:
“The AfD is an extreme right-wing, racist, anti-immigration party that has no place on UK campuses. We are shocked that a member of academic staff from SOAS could be involved with a party like this which stands for policies utterly incompatible with the values of diversity, tolerance and internationalism at the very heart of SOAS as an institution.”
Dr Beck informed The Independent that his reason for supporting the AfD was because “there is no other Eurosceptic conservative party in Germany”.
He also went on to say that the AfD are “not a Nazi nor a fascist party.” Dr Beck stated that he was an advocate for freedom of speech and would defend anyone’s rights to it and any claims of him being a white supremacist, Islamophobe or fascist were outrageous.
Subsequently, Dr Beck was elected as 1 of 10 German MEPs from the AfD Party, but he was not dismissed from his position at the university.
A representative of SOAS stated:
“We find the policies of the AfD on a range of matters to be abhorrent. They conflict with the fundamental values we hold as an institution. We recognise the anxiety caused to staff and students as a result of this situation.”
However, they added that:
“As an academic institution, we are committed to the rights of academic freedom of speech within the law, despite the painful choices to which it gives rise. We encourage members of our community to tackle these issues through robust debate.”
This story regarding Dr Beck’s private affairs is an excellent illustration of employers not being able to fire an employee for acts committed in private due to protected characteristics (i.e. political beliefs) of the Equality Act 2010.
Both Dr Beck and the University of London have undoubtedly suffered reputational damage. Beck has suffered reputational damage in the eyes of his fellow lecturers and students because he is a member of AfD; and the university has suffered reputational damage for employing him in the first instance and subsequently for not dismissing him after the revelation about his political activities came to light.
That said, the University of London was in something of a difficult position because Dr Beck would probably have launched a legal challenge in terms of the Equality Act 2010. He would doubtless have protested that his political activities were a protected characteristic (philosophical beliefs). It would then have been up to an Employment Tribunal and, potentially, the higher courts to determine this issue. There was also the possibility that the university would have been accused of suppressing the right to freedom of speech.
A link to the story in The Independent can be found below:
As previously discussed, reputational damage is a big concern for organisations. Employers have also had valid fears about risks to their’ reputation as a result of work place misconduct that becomes widely publicised in e.g. the media. These fears have been increased with the surge in social media use today.
Employees are now far more likely to be found behaving in questionable ways or making offensive remarks online, which can attract a large audience or readership very quickly. Social media platforms, such as Facebook, Instagram, Twitter and WhatsApp (where responses can be instant) can represent something of a nightmare for an employer. It is important to remember that social media, if abused, can have a significant impact on relationships within the work place and could result in serious legal consequences.
Social media misuse by employees has become a frequent and complicated issue for employers to address. Although social media can be an extremely valuable resource for organisations, it can also pose a serious challenge to both employees and employers. Inappropriate social media misuse e.g. racial or sexual harassment could lead to employers being held vicariously liable for their workers’ misbehaviour.
When an employee misuses social media, firms need to know how to respond and handle it. Therefore, it is vital for companies to devise a clearly defined social media policy by which employees abide. It is important that employers notify workers about the nature of these policies and the potential ramifications of any violations.
So, when employers want to act against employees who make offensive remarks, such disciplinary action should come as no surprise. Such remarks can cause embarrassment, at best. At worst can hurt a firm’s reputation and lose them customers. Even if the remarks were posted years ago, they can still come back to haunt the employer and the employee.
The difficulty of dealing with social media use by employees for organisations can be seen in the case below.
Creighton v Together Housing Association Ltd ET/2400978/2016 Mr Creighton was dismissed for tweets which were made three years earlier. He had made negative remarks about colleagues and his boss on Twitter. The claim that Mr Creighton posted offensive remarks on Twitter resulted in his dismissal for gross misconduct even though he had worked with the organisation for 30 years.
Held: The Tribunal further clarified that the disciplinary policy of THA included “defaming the company or undermining its image by the use of social media” as an example of gross misconduct. The appeal panel rejected Mr Creighton’s appeal to the decision, arguing that he was aware or should have been fairly aware of the implications of his conduct as the disciplinary policy of the company.
There are more and more cases of social media defamation – which emphasises a need for extremely specific social media rules and regulations in the terms and conditions of an employer.
Employees are going to be very foolish if they assume it’s a credible argument to claim that social media comments happened outside working hours, were believed to be posted on an account that is supposed to be “secret” or posted years earlier, which Mr Creighton found out.
The importance of having a social media policy
As previously mentioned, establishing a solid social media policy is vital for an organisation. From the workers’ viewpoint, it is important that they are aware of the existence of such a policy, understand its substance and also recognise any potential consequences for failing to follow its rules.
Employers are also urged to review and update social media policies on a routine basis. New platforms and technology continue to be developed at a quick pace today and to maintain the knowledge of social media is simply made part of induction and training methods.
It is extremely necessary for an employer to make clear to its employees the kind of conduct which may justify dismissal. Usually, this may be done via a section in the employee handbook which addresses the consequences of misconduct in the workplace.
Additionally, an acceptable induction technique for new personnel may centre on the kinds of behaviour which the corporation would not condone. Regular refresher training for current and long-term personnel may be beneficial and, in large organisations, this would be a necessary function of the Human Resources Department.
There was a huge news outbreak when a Panera Bread employee leaked a video of a man laughing hysterically that’s racked up almost 1 million likes (now that’s a lot), as a plastic packet of frozen macaroni and cheese is dropped into a boiler, burst open and then poured into a bowl geared up to serve to customers. The lady who posted the clip offers a thumbs-up in the hat that marks her as a worker of Panera Bread.
The clip introduced a wave of complaints in October 2019 from dissatisfied clients of a chain recognized for “fast casual” eating commonly perceived as a step in quality above other quickly made or fast food meals. Commenters stated they expected more than warmed-from-frozen dishes, or — as one critic put it — “glorified hospital food.”
Unfortunately for the employee she later posted on Twitter stating, ‘lol I lost my job for this’. The employer was clearly very unhappy at the negative media attention and being ‘outed’ for lying to its customers and providing them with low quality food.
In conclusion, employees should be incredibly careful of what they are doing or how they areusing social media during or outwith their working hours as their employers will have the right to investigate any implications arising from employees’ misconduct.
One of most likely repercussions arising from employees’ misconduct in privacy cases, is that the business and those involved will experience reputational damage. Whether this reputational damage is a result of offensive language in a tweet, forms of bullying in a Whatsapp groupchat or even now a TikTok exposing behind the scene practices of a company – there can be significant consequences. The preponderance of evidence shows that how employees conduct themselves in what they may consider private, has a major effect on workplace relations.
Adesokan v Sainsburys Supermarket Ltd  EWCA Civ 22
Bărbulescu v Romania 5 September 2017 (Application no. 61496/08)
On 23 April 2019, Monica Lennon, a Member of the Scottish Parliament for the Labour Party introduced the Period Products (Free Provision) (Scotland) Bill (a draft law). There is nothing particularly unusual about this. After all, it is the job of our parliamentarians to make laws on behalf of the people of Scotland.
The purpose of this Bill captured the imagination of many and gained quite a bit of media attention due to its objective: the eradication of one of the sources of poverty endured by many women on low incomes in Scotland. In short, Ms Lennon’s Bill would ensure that women were given free access to period products.
Although the Bill’s objective was universally praised, the Scottish Government expressed doubts about its financial sustainability – and Ms Lennon, after all, is an opposition and backbench member of Parliament. Politics is politics after all.
Now, after some time in the equivalent of the parliamentary doldrums, the Bill has been given a new lease of life having been approved (the main principles of the proposal in any case) by a majority of Ms Lennon’s Holyrood colleagues.
That is not to say that the Bill will be passed as it was originally introduced to Parliament last April. It is more than likely that it will be subject to intense scrutiny by parliamentary committee and a range of amendments will be proposed.
What the shape of any eventual law will look like is anyone’s guess at this stage, but all credit to Ms Lennon who has persisted in pushing forward this important issue and keeping it firmly in the spotlight.
This is nothing new: most Bills will be subject to amendments as they undergo the scrutiny of the legislature. This is part and parcel of parliamentary life; compromises will have to be made in order that a Bill can be placed on the statute books i.e. can move beyond a mere proposal to something more concrete and lasting – an Act of Parliament.
An info graphic showing the current progress of the Bill (now at Stage 2) can be seen below:
Links to articles on the BBC website about the Bill can be found below:
Unlike the fantastic Amy Winehouse track, in the case that I’ll discuss shortly, it was the prisoner who wanted to go to rehab. His perception that the Prison Service had said “no” was the basis of a petition for judicial review.
Yes, we’re barely into 2020 and the human rights’ bandwagon for prisoners rolls on yet again.
Last month, I wrote two Blogs about petitions for judicial review submitted by prisoners to the Court of Session in respect of Article 8 of the European Convention on Human Rights (i.e. the right to family and private life). Both applications were unsuccessful (see William Frederick Ian Beggsv The Scottish Ministers  CSOH 95; and Petition of David Gilday for Judicial Review of the actions of the Scottish Ministers  CSOH 103).
The Scottish Government (or Ministers) are legally obligated in terms of both the Scotland Act 1998 and the Human Rights Act 1998 to ensure that public bodies and agencies comply with the State’s obligations under the European Convention on Human Rights. Regular readers of this Blog site will be very familiar with this state of affairs.
In a recent case before Lord Ericht in the Court of Session, a third inmate of one of Her Majesty’s penal institutions fared no better than his fellow hoodlums when he raised a claim for damages of £10,000.
In the Petition: Michael Glancy for Judicial Review of the actions of Scottish Ministers , Michael Glancy [the prisoner] claimed that the alleged failure by the Scottish Prison Service to provide him with proper rehabilitation opportunities represented a breach of his right to liberty in terms of Article 5 of the European Convention on Human Rights. In essence, Glancy was arguing that the lack of such opportunities was in effect turning his imprisonment into an ongoing period of arbitrary detention with very little prospect of him meeting Parole Board criteria for his release on licence.
The background to the prisoner’s circumstances were as follows:
“In June 2015, at the High Court in Edinburgh, the petitioner was sentenced to a period of imprisonment of 4 years with an extension period of 2 years. He had been convicted of assault to injury, two charges of assault, a contravention of the Criminal Law (Consolidation) (Scotland) Act 1995, section 52 (vandalism), two charges of assault (domestic) and assault to injury, permanent disfigurement and danger of life. The petitioner had had previous convictions …”
At a Parole Board Hearing in 2016, it was noted that:
“Inlight of the current circumstances, behaviour and attitude of Mr Glancy it is not possible to positively recommend his release on licence. It would appear that he is so engaged in extreme, violent and anti-authority type behaviour there is no possibility of his risk being managed in the community subject to licence conditions. There are significant concerns as to how Mr Glancy will be managed in the community, not least where he will live.”
Glancy’s main bone of contention seems to have centred around his belief that he was denied the opportunity to participate in the Self-Change Programme (“SCP”).
As Lord Ericht noted:
“This [SCP] is a high intensity cognitive-behaviour programme that aims to reduce violence in high risk adult male offenders. It is for prisoners with a persistent and persuasive pattern of violence. It is for violent offenders who present the highest risk and is used for the top 2% to 5% of offenders in terms of risk.”
While serving his sentence, Glancy had refused certain opportunities to address his criminal offending and, furthermore, he had been the subject of 13 misconduct reports (overwhelmingly connected with fighting and assault). As Lord Ericht observed [at paragraph 50] it was the repeated failures of Glancy to engage with meaningful offers of rehabilitation during his periods of incarceration that led to his exclusion from SCP.
In dismissing Glancy’s Petition, Lord Ericht made the following observations:
“Moreover I find that the respondents have not failed to provide information about when rehabilitative work might be offered in terms of article 5, or acted irrationally in failing to provide him with this. The minutes of the various case management meetings show that there was extensive discussion with the petitioner throughout the period of his incarceration about the courses available to him. In response to his complaint, the prisoner was informed that the SCP course for non-protection prisoners was not running at that time but he would be notified of the date of the course applicable for his category of prisoner. No date for such a course has since been fixed.”
A link to Lord Ericht’s Opinion in respect of Glancy’s Petition can be found below:
Should the accused in a criminal trial enjoy the presumption of innocence?
This is a long established principle of criminal law in the Western World that I have taken for granted since my first days at university. I always remember Professor Kenny Miller (of Strathclyde University’s Law School) correcting students who spoke in error about the ‘guilty’ person in a Scottish criminal trial. They were quickly admonished and reminded of the maxim that everyone is innocent until proven guilty.
Indeed, Article 11 of the United Nations’ Universal Declaration of Human Rights takes the view that the presumption of innocence is a fundamental human right.
Furthermore, Article 6 of the European Convention on Human Rights establishes the right to a fair trial and this includes the presumption of innocence. In the United Kingdom, this very important right has been incorporated into Scots, English and Northern Irish law via the Human Rights Act 1998. In Scotland, we, of course, have an additional layer of protection with the Scotland Act 1998.
Article 48 of the EU Charter of Fundamental Rights also echoes Article 6 of the European Convention.
Going back to the historical record, the Byzantine or Roman Emperor Justinian I emphasised the presumption of innocence for the accused as part of codification of Roman Law between 529-534 CE. Admittedly, Justinian was building on previous Roman legal practice as the Emperor Antoninus Pius (he of the less well known Wall for our Scottish readers) had introduced the principle during his reign between 138 and 161 CE.
The Romans would say Ei incumbit probatio qui dicit, non qui negat; translated as Proof lies on him who asserts, not on him who denies.
Jewish and Islamic scholars have, historically, also placed huge importance on the presumption of innocence as a cornerstone of their legal practices. Both the Jewish Talmud and Islamic Hadiths (sayings or practices of the Prophet) testify to this.
The Carlos Ghosn Affair
So, why am I reflecting on this area this dull and rainy second day of the New Year?
The escape from Japan of Carlos Ghosn brought the principle forcibly to mind this New Year. Mr Ghosn is the former Chief Executive of Nissan who has been accused of defrauding his former employer.
Mr Ghosn was under effective house arrest in Japan until a few days ago. Allegedly, with the help of his wife, he escaped from that country to the Republic of Lebanon (of which he is a citizen) The escape reads like something from a Hollywood movie script (the Mission: Impossible series anyone?) with Mr Ghosn hiding in a musical instrument case (presumably not a violin case) in order to make good his unauthorised exit from Japan.
A link to an article about Mr Ghosn’s escape in The Independent can be found below:
What is Mr Ghosn’s motivation for leaving Japan in this dramatic way? He claims to have no faith in Japanese justice in that the legal system of that country presumes his guilt.
The Japanese criminal justice system
Not possessing a great deal of knowledge about Japanese criminal practice, I admit that I was somewhat intrigued by Mr Ghosn’s assertions.
I had also just finished reading Owen Matthew’s excellent biography* of Richard Sorge, probably the most successful spy in modern history (and a possible role model for James Bond). Sorge had been spying for the Soviet Union in Japan in the 1930s and 1940s until he was unmasked and arrested in 1941. The treatment of Sorge at the hands of the Japanese criminal justice authorities forms part of the climax to the book.
As Owen Matthews notes:
‘Japanese justice, surprisingly, for an authoritarian state, turned out to be both thorough and scrupulous. The three volumes of investigative documents prepared by the Tokko [the Japanese Police] are exhaustive, far more professional than the cursory evidence which the NKVD [the forerunner of the Soviet KGB] assembled to convict hundreds of thousands of suspected spies in the 1930s.’ [p345]
Does the Japanese criminal code presume the guilt of persons on trial, as opposed to their innocence?
I decided to investigate …
… what I discovered was something rather more subtle.
The Japanese legal system does recognise the right of the accused to be presumed innocent until proven otherwise – despite Mr Ghosn’s claims. The burden of proof rests on the prosecution to demonstrate the guilt of the accused (as in Scotland, England, the United States etc).
There are indeed criticisms of the Japanese legal system that could be made (but no legal system is immune from criticism). In particular, the practice of not allowing suspects to have access to a lawyer during Police interrogation has been highlighted as a weakness of the system.
Before Scots lawyers get too smug, we would do well to remember the Peter Cadder case which led to an overhaul of Scottish criminal practice (see Cadder v HMA  UKSC 43).
Another criticism of the Japanese legal system seems to centre around the practice of prosecutors rearresting an accused when s/he has been acquitted by a lower court. The accused is then taken before a superior criminal court for a further trial and, possibly, conviction.
That said, in Scotland (and in England), we have abolished the double jeopardy rule, but this does not mean that prosecutors have free range to do what they like.
Finally, an accused who maintains his/her innocence under the Japanese legal system, is often not granted bail and can therefore be expected to undergo a lengthy period of detention until the case is brought to trial (Mr Ghosn was perhaps luckier than most being under house arrest). Critics of this aspect of the legal system have pointed out that it puts suspects under duress making them more likely to make an admission of guilt. Mr Ghosn had apparently spent 120 days in detention before bail (with very strict conditions) was granted last year.
Links to articles about the Japanese legal system from the local media can be found below:
The principle of presuming the innocence of the accused in a criminal trial until proven otherwise is a deeply rooted one in the Western World. It is a cornerstone of our justice systems. The United Nations regards it as a fundamental human right in terms of the Universal Declaration of Human Rights.
Yet, to assume that it is a Western concept alone, would be a monstrous conceit. Jewish and Islamic legal scholarship have both emphasised the importance of this principle.
Japan, as a member of the United Nations, also recognises the importance of the principle – which makes some of Mr Ghosn’s claims somewhat misjudged. Yes, the operation of the Japanese criminal justice system can and is the subject of criticism, but this observation also applies to every other legal system in the World.
* “AnImpeccable Spy – Richard Sorge – Stalin’s Master Agent” by Owen Matthews (Bloomsbury Publishing: 2019)
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 Beggsv The Scottish Ministers  CSOH 95