Legislation updates

February 24, 2015

Clauses for a new Scotland Bill published

The UK government has published draft clauses on part of a new Scotland Bill, which will implement the recommendations in the Smith Commission’s report that was published in November 2014.

The most significant proposal from an employment law perspective is clause 25, under which power is devolved to the Scottish Parliament in relation to the administration and management of employment tribunals. The devolved powers will be limited to ensure that consistency in the practice and procedure between the Scottish tribunals and the tribunals in England and Wales is maintained, but it will potentially give the Scottish Parliament power to change tribunal funding or abolish tribunal fees altogether.

Source: Scotland Office: Scotland in the United Kingdom: An enduring settlement (22 January 2015).

National Minimum Wage Regulations 2015 laid before Parliament

The draft National Minimum Wage Regulations 2015 have now been laid before Parliament and will come into force on 6 April 2015.

The published regulations contain minor amendments which did not appear in the draft National Minimum Wage (Consolidation) Regulations. These are amendments to the wording of regulations 23 and 27 (in relation to salaried hours work) and an additional regulation (now regulation 54) dealing with traineeships in England. The National Minimum Wage (Amendment) Regulations 2014 had already amended the current legislation so that a worker does not qualify for the national minimum wage for work done as part of a traineeship programme.

Source: Draft National Minimum Wage Regulations 2015.

Small Business, Enterprise and Employment Bill has been republished

The Small Business, Enterprise and Employment Bill 2014-2015 has been republished having completed committee stage in the House of Lords. While several amendments relating to whistleblowing, the national minimum wage and zero hours contracts were debated, none made it into the Bill. There is a minor amendment to the power to make regulations requiring the repayment of exit payments, which ensures that the power extends beyond the Treasury to Scottish ministers.

During the debate, the Parliamentary Under-Secretary of State for Business, Innovation and Skills indicated that the review into employment status, which was launched by the government in October last year, is still on track to conclude in March 2015.

Sources: Hansard, House of Lords Grand Committee, 26 January 2015, column GC1 and Small Business, Enterprise and Employment Bill 2014-2015.

Practical Law Employment, 30 January 2015

Looking forward to developments in employment law in 2015

January 29, 2015

This article discusses expected developments in employment law during 2015. Some of the measures discussed represent settled intentions on the part of the Government; while others, at the time of writing, are only proposals that are yet to be defined or refined. (more…)

Obesity may be a disability

December 29, 2014

The ECJ has agreed with Advocate General Jääskinen that there is no general principle of EU law prohibiting discrimination on grounds of obesity. However, obesity may fall within the definition of disability under the Equal Treatment Framework Directive (2000/78/EC). It will if it entails a limitation resulting, in particular, from long-term physical, mental or psychological impairments which, in interaction with various barriers, hinder a worker’s full and effective participation in their professional life on an equal basis with other workers. (more…)

Unilateral variation: change to notice period can have an immediate impact

November 30, 2014

Mere delay might, of itself, be neutral in determining whether an employee can be said to have accepted a change in contractual term made unilaterally by the employer. However, in considering whether an employee’s continued working without objection amounts to an acceptance of that change, a tribunal can have regard to (1) the immediacy of the impact of the change, eg a reduction to the notice entitlement could have an immediate impact in terms of job security, (2) whether the change in question was the only change or part of a whole package of changes, (3) the length of the period of delay, and (4) the claimant’s individual circumstances, eg if he held a trade union role and could be expected to appreciate the detail of the new term and raise any queries that arose. EAT: Wess v Science Museum Group.


March 20, 2014

The combination of late Autumn Statements and early spring leaks has left recent Budgets largely devoid of surprises. Most pundits believed that the 2014 Budget would follow this trend, if only because the Budget deficit in 2013/14 was still £108 billion. However, George Osborne proved them wrong and revealed a range of initiatives that had successfully been kept under wraps.

The reforms proposed to pensions, reducing the role of annuities, will change retirement planning significantly and have already had an impact on the value of insurance company shares. Some aspects of the new pension framework remain unclear, in particular the treatment of defined benefit (final salary) schemes.

The Chancellor also set out a new structure for ISA savers. Instead of introducing a cap on total ISA investment, as was rumoured last summer, Mr Osborne will increase the annual contribution limit to £15,000 from
July 2014. In addition, he will effectively scrap the current distinction between cash ISAs and stocks and shares ISAs.

The changes to the size and rate of the starting-rate income tax band from 2015/16 were also surprises for savers, although only about 1.5 million people are expected to benefit. Ironically, what was widely leaked as the good news of the Budget (and its most costly) – a further increase in the personal allowance to £10,500 in 2015/16 – almost went unnoticed among the Chancellor’s reforms.


Some Highlights;

• Radical reform of pensions, effectively introducing flexible drawdown for all defined contribution schemes.

• Major relaxations to the rules for turning small pension pots into cash lump sums.

• Reform of ISAs, with a new £15,000 annual contribution limit and full transferability in both directions between stocks and shares and cash.

• The savings tax rate reduced from 10% to 0% and the savings rate band increased to £5,000, both from 2015/16.

• The personal allowance is increased to £10,000 for 2014/15 and to £10,500 for 2015/16, with small reductions in the basic rate band for both years.

• The transferable tax allowance for married couples is set at £1,050 for 2015/16.

• The annual investment allowance (AIA) is doubled to £500,000 and there is a one-year extension of the higher AIA to 31 December 2015.

• Seed enterprise investment scheme (SEIS) is made permanent and new rules are introduced for venture capital trusts (VCTs) and enterprise investment schemes (EISs).

• Higher premium bond investment limits and, from January 2015, a new series of National Savings & Investments fixed rate bonds for people aged 65 and over.

We hope that this summary proves useful and, if any of the areas discussed seem likely to have an impact on your personal or corporate plans, we would urge you to contact us so that we can help guide you.

Best wishes

Yours sincerely

Levy & McRae


Appeal Court overturns conviction - successful appeal of rejection of due diligence defence under Licensing (Scotland) Act 2005

February 20, 2014

The Appeal Court today set aside the conviction of the Epic Group Scotland Limited who convicted at Aberdeen Justice of the Peace Court for selling alcohol to two persons under the age of eighteen. Epic relied at trial on the statutory defence in Section 141B of the Licensing (Scotland) Act 2005 that they had exercised all due diligence. There was evidence that Epic had provided all of their staff, not just bar staff, with the required training, that they operated a Challenge 25 policy, amongst other measures at the premises. The Appeal Court found the Justice had erred in rejecting the defence of due diligence and the Appeal Court quashed the conviction.


January 20, 2014

We are delighted to announce that following an 8 day Proof in the Court of Session our clients, Advance Construction (Scotland) Limited (ACS), have successfully defended a claim against them for £6.8 million. The Pursuers were instead awarded damages of around £20,000.

Seamus Shields, founder and Managing Director of ACS said: “This has been a costly and frustrating business episode, but despite this we have kept our eye on the ball and continued to grow the business.

I would like to thank our legal team of Levy McRae and counsel Roddy Dunlop Q.C. for their sterling efforts and encouragement throughout this very trying period.

The full opinion of Lord Woolman can be read here: http://www.scotcourts.gov.uk/opinions/2014CSOH4.html


January 17, 2014

A couple who made a £6.8million legal claim over the dumping of waste material have instead been awarded less than £20,000 damages at the Court of Session.

Levy & McRae acted on behalf of the defenders, Advance Contruction Ltd.  A 12-day hearing before Lord Woolman heard how directors of Advance Construction (Scotland) Ltd (ACS) were duped into believing they had permission to dump approximately 6,000 tons of material following the demolition of Coltness Primary School, in North Lanarkshire, on nearby land.

Today, Lord Woolman ruled that despite repeated offers by ACS to remove the material free of charge and offers of compensation, racehorse trainer Donal Nolan and partner Melanie Collins, refused to engage with ACS in a constructive manner.

The judge said: “It is difficult to see what more ACS could have done.  By failing to accept the offer made by ACS, Nolan is the author of his own misfortune.”

Nolan and Collins had originally claimed that they had planned to build luxury houses on the land which they valued at £6.8million. During the process ACS made various offers to remove the material free of charge,

Lord Woolman was scathing in his opinion of the couple’s evidence. He said of Nolan:

· He sought sums in excess of £6million but professed to know virtually nothing about the circumstances

· His evidence was of little value and wholly unreliable

Describing evidence offered by Collins, Lord Woolman said:

· She was inclined to be evasive on difficult questions

· Dismissive of expert evidence

· Her perspective was distorted and she was not a reliable witness

The court was also told Miss Collins enlisted the aid of Alex Neil, MSP for Airdrie and Shotts, and Minister of Health, to become involved. He became involved in several meetings and email correspondence.

The Judge concluded that Miss Collins and Mr Nolan did not take all reasonable steps in this case. He held that the offers made by Advance were “plainly reasonable” and that “it is difficult to see what more Advance could have done.”

Seamus Shields, founder and Managing Director of ACS said: “This has been a costly and frustrating business episode, but despite this we have kept our eye on the ball and continued to grow the business.

“I would like to thank North Lanarkshire Council for their professionalism in defending false allegations made against the company.

“Finally I would like to thank our legal team of Levy McRae and counsel Roddy Dunlop Q.C. for their sterling efforts and encouragement throughout this very trying period.”

University and College Union (UCU) v University of Stirling (UOS)

January 15, 2014

The Court of Session has now handed down its decision in the case of University and College Union (UCU) v University of Stirling (UOS). This case involves the issue of employers’ obligation to collectively consult over the non-renewal of fixed-term contracts.

Fixed-term contracts are often used by employers to provide certainty and flexibility, for example where an individual is required for a particular project, where funding comes from an external source and may not be renewed after a fixed period, where the employer is wishes to carry out a trial period before committing to offering a permanent role and to provide maternity or sickness absence cover.

Legal Background

Under s. 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), employers are obliged to collectively consult where they propose to make large scale redundancies of 20 or more employees at one establishment within a period of 90 days or less. Failure to do so can result in an employer having to pay an expensive protective award of up to 90 days gross pay for each affected employee. These collective consultation obligations apply only where each dismissal in question is “for a reason not related to the individual concerned or for a number of reasons all of which are not so related” (s. 195 TULRCA). This definition is different to and wider than the definition of redundancy contained within s. 139 of the Employment Rights Act 1996 (ERA).

Case Facts

The University and College Union raised a protective award claim on the basis that more than 20 fixed-term contracts had not been renewed in a 90 day period and the University had failed to discharge its collective consultation obligations. The University argued that non-renewal of a fixed-term contract was personal to the individual employee because they had agreed to their fixed-term contract terminating on a set date. Accordingly, the obligation to collectively consult was not triggered.

Four test cases were put forward by the University. At Tribunal level, the academic trade union was successful. The Tribunal held that the University had breached its collective consultation obligations and that it should have included those workers whose fixed-term contracts were due to expire in a collective consultation exercise.

The University successfully appealed to the Employment Appeal Tribunal (EAT). The EAT held that where a dismissal is because of the normal expiry of a fixed-term contract, the dismissal does not count for the purposes of collective redundancy consultation because one of the reasons for dismissal will be “related to the individual concerned”. The EAT decided that at least one of the reasons for the dismissal was that the employee had agreed that their contract would terminate on a particular date/ event and that this was sufficient to make the termination a reason relating to the individual.

This decision was appealed to the Court of Session. The question before the Inner House was whether the non renewal of a number of fixed-term contracts counted as redundancies for the purpose of s. 188 TULRCA.


The Court of Session has determined that the termination of a fixed term contract amounts to a dismissal. However, when determining whether the dismissal amounts to a redundancy dismissal it is necessary to consider whether the dismissal is for “a reason not related to the individual concerned” within the meaning of section 195 of the Trade Union Reform and Employment Rights Act 1993.

In the four test cases, at least one of the reasons for the dismissal in each of them was that the employee had agreed that their contract would terminate at a particular time or on the occurrence of a particular event. The Court of Session decided that such a reason did relate to the individuals as it had to do with their individual circumstances and their particular decisions. In such circumstances they were not dismissed as redundant. This meant that their dismissals did not count towards the number of employee required to trigger collective consultation requirements.

Legislative change

On 6 April 2013 (prior to the Court of Session appeal being heard), legislation came into force making it clear that fixed term contracts that come to an end at their agreed end point will not count as redundancies for the purposes of collective redundancy consultation. This legislation was not retrospective and therefore did not apply to the question which was before the Court of Session in the above case.

Evidence obtained from police search of vehicle “inadmissible”

December 17, 2013

CHARLES MCAUGHEY v. HER MAJESTYS ADVOCATE, 13 August 2013, Lady Dorrian+Lord Glennie+Lord Menzies.

This case demonstrates a successful preliminary challenge to the admissibility of evidence gathered during an “unlawful” detention and search.

The detention and search was under the guise of section 23 of the Misuse of Drugs Act 1971 which requires that the officer must have “reasonable grounds” to suspect that the accused was in possession of a controlled drug.

A constable stopped and searched a vehicle having been advised of the Scottish Crime and Drug Enforcement Agency’s suspicion in relation to the occupant and the vehicle. However, he had not be given any information

“of which he himself could have been suspicious or could have formed any reasonable grounds for any suspicion of his own”

Accordingly the court held that there insufficient basis for any suspicion formed by the arresting officer in this case and allowed the appeal.

The court cited with approval Lord Jones in the case of  HMA PB and VW at paragraph 27

“Someone else’s suspicion based on information which is not shared with the arresting or detaining officer will not do.”

Corroboration. A Curse or a Blessing?

November 22, 2013

courtroomThe debate surrounding the abolition of corroboration has not been of a quality demanded by the magnitude of the decision the Scottish Parliament is being asked to make.

Those seeking the abolition argue corroboration is out-dated, archaic, out of step with every country in the world and that it denies victims’ access to justice. Abolition we are told will increase convictions. Indeed proponents tell us corroboration represents a barrier to justice and is responsible for denying victims the opportunity of seeing those responsible brought to justice.

This sums up both the arguments for those seeking reform and the absurdity of the proposition being advanced.

Can we start by reminding ourselves what the functions of our courts are and what our legal system seeks to achieve?  This is simple, it is to determine guilt or innocence following an allegation by an “alleged” victim of criminal conduct, which results in the finger of suspicion identifying a possible culprit who becomes the accused and then faces trial. The purpose of the trial is to determine the guilt or innocence and to do so according to a set of rules and procedures designed to be fair, to avoid a miscarriage of justice and return a verdict of guilty only when it is right to do so.

Those seeking to abolish corroboration argue for change using emotion, rhetoric, anecdotal references to “if you saw what I saw on my desk” and vocabulary which displays an ignorance of or scant regard for our legal system laws and procedures.

The trial is there to determine if the accuser is a victim. There can be no presumption that those making an allegation are either telling the truth or are reliable. This is decided impartially on the evidence tested at the trial.  At stake is the guilt or innocence of the accused.

It is accordingly completely wrong to use vocabulary suggesting that corroboration denies victims the opportunity to see those responsible been brought to justice.

Justice favours neither the alleged victim nor the accused. Not every allegation made is truthful and not every accused is guilty. Not every piece of evidence is reliable. Witnesses sometimes tell the truth;  they sometimes tell lies. Witnesses may be truthful yet unreliable or mistaken. The purpose of the trial is to decide what evidence can be relied upon, who is telling the truth, who is to be relied upon.   How we go about this in Scotland involves seeking corroboration.

In Scotland, until now we have prevented convictions based only upon confessions or based solely on the testimony of a sole witness. We seek some other evidence which points to the truth and reliability of this evidence. We do not require two eyewitnesses; we do not require every piece of evidence to be corroborated. Corroboration applies only to the essential crucial facts in the case.

As was said in one case,

what is essential is that the evidence, whether direct or indirect, when taken as a whole provides the necessary conjunction of testimony to the required standard of proof.”

For witnesses who may be nervous or otherwise criticised as unreliable and whose performance in the witness box is unconvincing, corroboration can point to the truth of their evidence and support their reliability and credibility.

Corroboration does not deny justice, it delivers justice. How else are we to decide upon the truth of reliability of witness testimony? Are we to measure it by performance value? How people look in the witness box? Even a man of bad character can be the victim of a crime and corroboration of what they allege goes not to deny the allegation because of their imperfect performance or bad character but indeed proves the truth of what they allege.

The proposed changes are argued for by reference to convictions rates in domestic abuse and rape cases, yet the law on corroboration is to be changed for every type of case, albeit these types of cases form an extremely small part of the cases before courts.

If there is a case to be made to change the law for such crimes then should it not be changed in relation to those crimes and those crimes alone? Much is made of altering the requirements for a majority verdict in a jury trial yet the overwhelming numbers of cases do not come before a jury; they are tried before a sheriff or a magistrate. On what scientific basis do we say a majority of 10 rather than 8 protects us from miscarriages of justice?

The background to these proposed reforms comes from the decision in Cadder where the Supreme Court not unsurprisingly found that our law was not archaic because of corroboration but rather it was unjust and unfair to allow the police to detain an accused for questioning and deny him access to legal advice.

The Supreme Court did not make new law;  they applied the existing ECHR law which in common with most civilised countries provided that those to be questioned should have access to a lawyer.

Few people will find it difficult to understand that providing an accused person with the right to legal advice is a requirement of fairness in any judicial process. Extracting confessions, extracting evidence by questioning in circumstances where the police can deny access to legal advice is difficult to reconcile with fairness or justice.

Such practices were good for conviction rates but bad for justice.

Surely the purpose of our legal system is not to increase convictions but to reach a just and fair conclusion as to guilt or innocence. If the aim is simply to increase convictions we can abolish trials or the presumption of innocence.

What is crucial is how we deal with consideration of such important questions. Is it by emotive and ill-informed debate in circumstances where those in power have not only the will but the political majority and can do what they consider best? Or do we refer that matter to the body which already exists to consider changes in our system - The Scottish Law Commission. I quote from the introduction to their website:

The Commission’s task is law reform: to recommend ways of simplifying, updating and improving the law of Scotland.

We want to ensure that our recommendations, if implemented, will result in law which is just, principled, responsive and easy to understand. It is therefore critical for us to engage in a thorough and open process of consultation and we welcome the views of as many people as possible in response to our specific consultations

Let us not rush into foolish ill-thought-out changes to our legal system, a system revered by many throughout the world.

If change is needed, let it to be considered calmly and carefully free from the knockabout debate of politics. Let’s pause to ask why every judge, with the exception of the one asked to write the report which supports this reform, every lawyer and many others beside  oppose this reform as it is currently stands.

It remain a mystery why such a fundamental change to our legal system has not been referred to the Scottish Law Commission for impartial and measured consideration. It is not too late. Scotland, surely we can do better than this?

Strathclyde Partnership for Transport Successfully Defends Constructive Dismissal and Sex Discrimination Claims Made by Disgruntled Ex-Employee

November 7, 2013

SPT has successfully defended claims of constructive dismissal and sex discrimination brought by disgruntled ex-employee, Ann-Marie Waugh. The Glasgow Employment Tribunal unanimously decided (following a five-day hearing) that the complaint of unfair dismissal is not well founded and that the Tribunal did not have jurisdiction to determine the complaint of sex discrimination as it had been presented out of time. SPT was represented by Levy & McRae Solicitors who then instructed David Hay of Westwater Advocates.


October 1, 2013

The firm is pleased to announce that from today, 1 October 2013, Callum Anderson and Laura Salmond will become Senior Associates and David Adams becomes an Associate.

All Change in Employment Law

July 29, 2013

The Enterprise and Regulatory Reform Act 2013 (“the Act”), which received royal assent on 25 April 2013, introduces new measures related to the way the employment tribunal system works. A number of the new measures come into force today, Monday 29 July 2013. These are as follows:


Fees have been introduced for claimants to lodge tribunal claims in respect of claims presented on or after 29 July 2013. This is to encourage early settlement of claims. The level of fees is dictated by the nature of the claim.

  • Type A claims are straightforward claims for defined sums, eg sums due on termination of employment such as redundancy pay, holiday pay or unauthorised deductions from wages. Equal pay claims also fall under type A, as they are, in essence, claims in contract.
  • Type B claims are more complex, eg unfair dismissal, discrimination and whistleblowing.

Fees are in two parts. The claimant must initially pay an issue fee when he or she lodges the claim with the tribunal and, if the claim is set down for a final hearing, there is an additional hearing fee to pay. The fees are:

  • Type A: £160 issue fee, £230 hearing fee
  • Type B: £250 issue fee, £950 hearing fee
  • Employment Appeal Tribunal: £400 appeal fee, £1,200 hearing fee, payable by whichever party raises the appeal.

Certain claimants may qualify for remission which will mean they may be excused in full or in part from paying fees. The remission scheme applies to claimants who are on benefits or who have low incomes. The scheme is currently under review.

Fees, once paid, are not refundable, but where the claimant’s case succeeds, the employment tribunal has the discretion to order the employer to reimburse his or her fees.

With effect from 29 July 2013, therefore, all new claims need to be accompanied by the appropriate issue fee or a remission application. If payment is not included (or a remission application made), the claim will be rejected, however time will continue to run for the purpose of time bar. As regards hearing fees, the due date for payment will be set out in the notice of hearing, and if payment is not made by that date the tribunal will write to the claimant giving a further deadline for payment (or making a remission application), failing which the claim will be dismissed.

Settlement Agreements and confidentiality of pre-termination negotiations

Compromise agreements have been renamed “settlement agreements”.

The Act also introduces new provisions permitting employers to offer employees a “settlement agreement” to terminate their employment, irrespective of whether any dispute between them has arisen. If the employee rejects the offer, he or she will not be able to use the fact that the employer made the offer at any subsequent employment tribunal hearing for unfair dismissal (unless something improper was said or done during the “pre-termination negotiations”). Similarly, the fact that the employer made a settlement offer will not be grounds for a claim of constructive unfair dismissal.

The exclusion of pre-termination negotiations and settlement offers being admissible in evidence before an employment tribunal only applies, however, to claims for standard unfair dismissal. If a claim is one for automatically unfair dismissal, unlawful discrimination or breach of contract, for example, the claimant will be able to present evidence about any pre-termination negotiation and/or settlement offered at the tribunal hearing. In particular, any evidence about discriminatory remarks made during a confidential conversation will be admissible before a tribunal.

Acas has published a new statutory Code of Practice setting out the principles on the use of settlement agreements, together with accompanying non-statutory guidance. The Code recommends that employees should be given at least ten calendar days to consider any settlement offer and that they should have the right to be accompanied at any meeting set up to discuss the settlement. The guidance also contains template letters.

Unfair Dismissal Compensatory Award Cap

A new cap of the lesser of one year’s salary or the applicable statutory cap (currently £74,200) has been introduced in respect of the compensatory award for unfair dismissal, applicable to all claims dealt with at tribunal on or after 29 July 2013.

Changes to Rules

Case management discussions, pre-hearing reviews and other types of preliminary matters dealt with by employment tribunals in advance of the main hearing (now called a “final hearing”) are handled together in a “preliminary hearing”.

Watch this space …

The Act proposes a number of further new measures which are not yet in force. These are:

  • Tribunals may be given discretion to impose financial penalties (which would be payable to the exchequer) on employers who are found to have breached employees’ rights — although the Government has recently stated that it has no plans to use this provision.
  • A requirement will be introduced for all tribunal claims to be lodged first with ACAS in order to allow pre-claim conciliation to take. This is set to come into force in April 2014.
  • There are to be changes to the way in which tribunal awards and statutory redundancy payments are revised each year and annual increases will, from 2014 onwards, take place on 6 April rather than on 1 February as at present.
  • There is a further power in the Act to cap the compensatory award at the level of the national median salary (currently around £28,000).
  • Repeal of the statutory questionnaire procedure with effect from 6 April 2014.
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