Chambers released their 2008 results which saw our firm, as rated by our peers, maintain our Band 1 ratings for Crime and Defamation/Reputation Management; Band 2 for Media & Entertainment and Band 3 for Personal Injury. 

It also saw our firm achieve a new rating for Partnership (Band 2) and Dispute Resolution (Band 3). 

We are proud to not only have maintained the high standards and results in our core areas, but also to achieve recognition in two further departments.

View the full listing (pdf, 760k).

A Strathclyde police officer convicted of an on duty assault in September 2006 at Glasgow Sheriff Court, had his appeal upheld and conviction quashed.  Our firm conducted the trial which concluded in 2006. 

A no case to answer submission was properly made on the basis of insufficiency of evidence in the Crown case.  The Sheriff repelled the submission and proceeded to then convict the police officer. 

An appeal was lodged immediately and after waiting 18 months for a date for the Appeal to be heard, the Appeal Court confirmed that the Sheriff was wholly incorrect to repel the no case to answer submission and accordingly the conviction was fatally flawed.

An employment tribunal has awarded £16,000 to a 19-year-old woman in a ground breaking case following her claim that she was dismissed for being too young.

Leanne Wilkinson, who was then 18, claimed that she suffered age discrimination when she was dismissed from her job as an administrative assistant at Springwell Engineering in Newcastle Upon Tyne. The case is the first to properly test the Employment Equality (Age) Regulations 2006 in relation to a young worker.

The tribunal found that age was the predominant reason for her dismissal as the company had relied on a stereotypical assumption that capability equals experience and experience equals older age.

The company was ordered to provide any prospective employers with a truthful reference, clearly stating that dismissal was carried out in breach of the regulations on the grounds of her age and not on the
basis of ability.

Commenting on the case, Craig McCracken, an employment lawyer at Nexus Solicitors of Manchester, who acted for Miss Wilkinson, said that it was an important decision with far-reaching consequences.

“There is often an assumption that age discrimination laws are only there to protect older workers, but this case is a reminder that everyone is entitled to be treated fairly, whether they are close to retirement or just starting out in work,” he said.

The Times, March 4, 2008

Women undergoing IVF treatment can claim sex discrimination if they are treated less favourably, EU judges have ruled.

The ruling was made in the case of an Austrian worker, Sabine Mayer, who was dismissed three days before her fertilised eggs were implanted. Ms Mayr argued that she was pregnant from the date of fertilisation and not implantation and therefore protected against dismissal under national maternity protection laws. While the judges dismissed this argument they ruled that as the IVF procedure was one that affects only women Ms Mayr was entitled to protection under EU anti-discrimination and equal treatment laws.

“Treatment such as that which Ms Mayr has undergone directly affects only women,” the judges ruled. “The dismissal of a worker essentially because she is undergoing a transfer of fertilised ova into her uterus therefore constitutes direct discrimination on grounds of sex.”

Lawyers said that UK employers should be mindful of the ruling. Rachel Dineley, an employment partner and discrimination specialist at law firm Beachcroft, said: “IVF is now much more common and employers need to make sure they have appropriate policies in place.

“The ECJ has made clear that IVF treatment is likely to fall within the Equal Treatment Directive, even if the employee is not yet technically pregnant. This means that employers should take a supportive approach to women who are undergoing IVF treatment.

“To subject a woman to any form of detriment as a result of her having treatment at the very least risks a claim under the Sex Discrimination Act.”

Martin Warren, head of employment law at Eversheds law firm, said: “The central concern of most employers in relation to this issue is how they might manage an employee’s pattern of absence during IVF treatment. Previously, this may have led some employers to discipline or even dismiss a woman undergoing treatment but this ruling clarifies that this could now be considered an unlawful and potentially highly costly course of action.”

The Times, February 26, 2008

It is almost six years since the (amended) draft EC directive “on working conditions for temporary workers” was published in March 2002. Its purpose is to ensure that agency workers provided by employment agencies have the same basic employment law rights throughout the EU, that they are not discriminated against because they are temporary workers and that agencies who supply them are regarded as their employers. 

Special conditions in the UK have meant that the British Government has consistently blocked adoption of the directive, most recently in December 2007. However three recent events have made it likely that there will be significant changes in the law relating to temps and agency workers in the near future:

• France takes over the 6 monthly presidency of the EU in July 2008. It is probable that there will then be a renewed push to have the directive adopted.
• In February 2008, the British Parliament gave a 2nd reading to a Private Member’s Temporary and Agency Workers (Equal Treatment) Bill. The Bill is not supported by the government and so is unlikely to become law, but the increased pressure to ‘do something’ led to the Prime Minister calling a meeting with union leaders to discuss the issue a few days later. The DTI issued a consultation document on the subject a year ago and Gordon Brown has now suggested setting up a commission to make recommendations. 
• Also in February 2008, the Court of Appeal had a difficult agency worker case to consider, James v Greenwich, Council CA 2008. Echoing the Employment Appeal Tribunal, the Court effectively suggested that the time has come for the question of “who is employer of an agency worker?” to be directly addressed by Parliament. In the course of his judgment Lord Justice Mummery said “The courts and tribunals are well aware of the nature of the arguments for and against a change in the law, but it is not for them to express views about a change or to initiate change. This is a matter of controversial, social and economic policy for debate in and decision by Parliament informed by discussions between the interested parties.”

Separately, it should be noted that new Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations are currently proposed. With effect from 6th April, 2008 they will make minor amendments to existing law. The new regulations will help agencies by reducing red-tape where a temp appointment is for
5 days or less and will increase protection for workers by requiring agencies to provide those who get work through them with a formal statement of their right to cancel, or to withdraw from their work, without detriment or penalty.

www.emplaw.co.uk, 3 March, 2008

A Roman Catholic couple in Scotland who accused Strathclyde Police of religious discrimination have won the first round of their employment tribunal.

Lucille and Frank McQuade, of Motherwell, accused the police authority of religious discrimination after categorising married couples and civil partners in the same group.

The couple complained after their status as civilian employees of the force was changed from ‘married’ to ‘married/civil partnership’ in personnel records. The couple told the Glasgow tribunal in October 2007, that they held religious views regarding the sanctity of marriage and found the description offensive, causing injury to their feelings as married persons.

They argued that this change to their ‘true legal and religious status’ amounted to sex and religious discrimination.

The police authority denied the McQuades suffered any detriment and argued the use of a separate category of civil partnership would disclose a person’s sexual orientation which is a breach of guidelines from ACAS.
Employment judge Jane Garvie ruled that the case should proceed. It will now go on to a full employment tribunal.

The Herald, March 11, 2008

The Court of Appeal ruled in early February that taking an expired warning into account in coming to a decision to dismiss an employee does not automatically mean that the dismissal is unfair. Previous case law has suggested the contrary.

Mr Webb was an aircraft fitter employed by Airbus. He was dismissed for gross misconduct, namely, washing his car when he should have been working. On appeal this was reduced to a final written warning which was expressed to remain on his on his personal file for 12 months. Three weeks after the expiry of that written warning, he was found watching television instead of working. Following proper disciplinary process, Airbus dismissed him. Others who had also been watching television were given final warnings but were not dismissed as they did not have any prior adverse disciplinary records.

Mr Webb claimed unfair dismissal. An employment tribunal took the view that, following case law, it was obliged, and not merely entitled, to ignore expired warnings. On appeal the EAT supported this view, albeit pointing out that the arguments were finally balanced.

Airbus appealed on to the Court of Appeal and won. The Court of Appeal pointed out that the law requires a tribunal to consider all the circumstances in an unfair dismissal case. On that basis an expired warning and the misconduct which gave rise to it can be circumstances to be taken into account when considering whether the dismissal falls within the range of reasonable responses open to an employer in reaction to subsequent misconduct. 

This decision contradicts the impression given by previous case law and will surely be welcomed by employers.

www.emplaw.co.uk, 3 March, 2008

From 29th February, 2008, there are new rules regarding employment of immigrants from outside the EU.  They are set out in the Immigration, Asylum and Nationality Act 2006  and the UK Borders Act 2007 and regulations made under them. They toughen up existing rules imposing penalties on employers who employ illegal immigrants and set up a new ‘Points’ system for deciding which non-EU citizens shall be allowed to work in the UK. Main effects for employers are:-

• An unlimited fine and/or a prison sentence of up to two years for employers who employ an adult who they know is not legally entitled to work in the UK; and
• A civil penalty of up to £10,000 per employee if the employer did not make the appropriate checks and did not know that the worker was not legally entitled to work in the UK.

There is a fairly obvious ‘Catch 22’ here.  If an employer is not careful, the process of making sure that a new recruit is entitled to work in the UK could lead to a breach of race discrimination law. The Home Office (Borders and Immigration Agency) has updated its Code of Practice which seeks to give advice on this particular aspect as well as generally.

The well publicised new points based immigration system requires employers to apply for a licence to sponsor and bring immigrants in to the United Kingdom from outside the EU. The licence terms will include a number of ‘sponsorship duties’, such as compliance with record keeping and reporting rules. The requirements are very detailed and even extend to the position which will arise if employment of a migrant is automatically transferred to a new employer as a result of a business transfer  within the scope of the TUPE regulations. 

Employers should take great care to ensure that they do not inadvertently fall foul of the new rules. Advice should clearly be taken in any case of difficulty.

www.emplaw.co.uk, 3 March, 2008

In early February the Cardiff employment tribunal announced the compensation to be awarded to a gay man who had been turned down by the Church of England Bishop of Hereford for a job as diocesan youth officer. The total compensation awarded was just over £47,000, including amounts for loss of earnings, future pension loss and  damages for psychiatric injury and injury to feelings.

Apart from the substantial amount of compensation awarded to the unfortunate job candidate, the case is of general interest because of the grounds on which the tribunal decided that the Bishop had contravened the Employment Equality (Sexual Orientation) Regulations 2003. 

The case, Reaney v Hereford Diocesan Board of Finance, had quite wide publicity.  The Bishop was named ‘bigot of the year’ by the Stonewall organisation and the general impression given by reports, and not contradicted by gay pressure groups, was that the tribunal had decided the Bishop acted unlawfully in refusing to have a gay person as diocesan youth officer. However this was not what the tribunal decided.

The ground for the tribunal’s decision was not that it had been unreasonable for the Bishop to reject a gay person as diocesan youth officer. Rather it was that the tribunal considered it was unreasonable of the Bishop not to accept an assurance from the man concerned that he “was happy to remain celibate for the duration of the post.”  Reports stating that the Bishop was found ‘guilty’ of discriminating against the man concerned simply because he was gay are therefore wrong.

As this was a decision by an employment tribunal, it is not binding authority.

www.emplaw.co.uk, 3 March, 2008

Only 44 per cent of new mothers believe that their companies do enough to encourage them back into the workplace, according to a poll of workers conducted by the recruitment site Monster.

Monster recently asked nearly 500 UK workers the question: “Does your workplace encourage new mums to come back to work?” The overall results were as follows:

• 17 per cent said “yes, they do everything in their power”;
• 27 per cent said “yes, they offer the usual maternity benefits”;
• 20 per cent said “not really”;
• 36 per cent said “not at all, they would rather have someone without commitments”.

Commenting on the findings, Julian Acquari, managing director of Monster UK and Ireland, said: “Our poll demonstrates that, despite legislation, there is still a feeling among workers that new mothers do not receive the support in coming back to work that they deserve from their employers.

“Women’s careers don’t end with having children – many women look forward to rejoining the workforce, not to mention that raising a child can be expensive and many new mothers still need to work to provide the vital added income.”

Monster press release, March 10, 2008

A tribunal ruling has awarded part-time firefighters equal rights to pensions and sick pay as full-time employee’s.

In a case which has major implications for millions of part-time workers, the employment tribunal found that firefighters working ‘retained duty’ were discriminated against when they were denied access to a pension and the same sick pay (pro rata) as full-time firefighters.

The legal victory for firefighters working the Retained Duty System follows an eight-year legal battle which started in 2000, when 12,000 cases were lodged at Employment Tribunal. The case was originally lost at tribunal, Employment Appeal Tribunal and Court of Appeal.

The case centred on the exclusion, before April 2006, of retained firefighters from the Firefighters’ Pension Scheme and worse treatment under the sick pay scheme. Firefighters claimed that they were being treated less favourably because they were part-time workers and that this was unlawful and unfair.

The judgment, based on the principles set out by the House of Lords earlier in the case, establishes the right to equal treatment for part-time and full time workers across a whole range of employment issues. Apart from sick pay and pensions it potentially includes training and all other work-related payments, including expenses.

“The Fire Brigades Union (FBU) has fought this case for many years against great odds,” said FBU general secretary Matt Wrack. “Once again we have proved we are the only organisation in the fire service with the will and means to protect firefighters of all duty systems.”

Marketwire, March 11, 2008

At the end of February, the House of Lords handed down its decision in the sad case of Corr v IBC Vehicles Ltd.  
In 1996 a maintenance engineer suffered severe head injuries in an accident caused by malfunctioning machinery. He suffered post-traumatic stress disorder and fell into deep depression. In 2002, he committed suicide. His widow sued her late husband’s employer for negligence and for damages under the Fatal Accidents Act 1976.

The employer admitted negligence but rejected the Fatal Accidents Act claim on the basis that his suicide had not been foreseeable and anyway was, in legal language, “too remote”. The High Court accepted this argument but the widow won on appeal to the Court of Appeal. The House of Lords has now unanimousely agreed with the Court of Appeal majority and dismissed the employer’s appeal, although 3 of the 5 Law Lords suggested that the suicide amounted to contributory responsiblity for death and should lead to a reduction
in compensation.

The key factor in the Court of Appeal and House of Lords’ decision was that the type of harm suffered by the employee was foreseeable. It was not necessary for the widow to show that the precise form which the damage might take (i.e. in this case suicide) was foreseeable. This is a distinction which may be subtle but is nonetheless of potentially considerable importance.

www.emplaw.co.uk, 3 March, 2008