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Discrimination and Land reform: Success without the
psychiatric injury the journey continues human cost
P.16 P.20 P.24
Journal of the Law Society of Scotland Volume 66 Number 1 – January 2021
Done deal
The clock stopped ticking just in time, but there is plenty still to be worked
through regarding future relations with the EU – and the impact on UK law
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President: Amanda Millar
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Chief Executive: Lorna Jack
Online resources
Distant light
www.lawscot.org.uk (home page) As COVID-19 cases surge, and we become practices. But the goodwill built up during
www.lawscot.org.uk/members/journal/ even more locked down, I have noticed negotiations and expressed on both sides at
www.lawscotjobs.co.uk
news broadcasts referring to any glimmer the time of the initial announcement risked
Subscriptions of related good news, such as projected being sacrificed when a draft SSI released
Practising Certificate (inclusive cost) £565; vaccine rollout, as a “chink of light”. two days later – on Christmas Eve – was
Non-Practising Members (UK and Overseas, In dark times, made darker by it being read as taking away with one hand part of
inclusive cost) £315; Annual subscription UK £84;
January, we all need something to cling what had just been given with the other.
Overseas £108; Trainees Free
on to, to look forward to. That, I suppose, A failure of communication somewhere,
Editorial is an illustration of how we need to pay surely.
Connect Publications (Scotland) Ltd particular attention to our mental health It has since been clarified that that was
Editor: Peter Nicholson: 07785 460743 through this pandemic, and more a separate, and (it is claimed) cost
e: peter@connectcommunications.co.uk than ever in the month that is neutral revision of the criminal
Advertising: Elliot Whitehead: +44 7795 977708 notorious for bringing on bouts fees rules. However the Society,
e: journalsales@connectcommunications.co.uk of depression. and members, are now on the
Review editor: David J Dickson And the message of the alert to ensure that that is in
Online legal news: pandemic, that we have to fact the case, and that the full
e: news@connectcommunications.co.uk help each other out and pull package announced will be
Other Connect Publications contacts, through this together, equally promptly delivered. Especially
telephone 0141 561 0300
applies in this context. In other now, unity is strength in the talks.
Head of design: James Cargill (0141 561 3030)
words, don’t suffer alone. If you need
james@connectcommunications.co.uk
help and haven’t a friend or family member Déjà vu
Editorial board you can open up to, there are resources Also just in time for Christmas was the
Austin Lafferty, Lafferty Law and professional support on hand through UK Government’s Brexit deal with the EU.
Andrew Todd, Springfield Properties Plc the Lawscot Wellbeing pages online. It is rather far from the “deep and special
Philip Hannay, Cloch Solicitors
Even if your new year doesn’t feel great relationship” desired by Theresa May when
David Bryson, Baillie Gifford
Ayla Iridag, Clyde & Co at the moment, I wish you a happier one as talks first opened, and does not avoid the
Kate Gillies, Harper Macleod LLP it goes on – and an upward curve for us all. negative impacts now coming to light for
many individuals and businesses. It does
Nailing the package however contain provisions permitting UK
Also needing a bigger chink of light right lawyers to continue to provide some types
now is the legal aid sector. The Christmas of advice in member states. An outline can
present from the Government, in the form be found on the Law Society of England
Disclaimer of the 10% fee rise over two years plus & Wales website. More generally, it is
The views expressed in the Journal of the Law
Society of Scotland are those of invited contributors other business support, was welcomed designed to be subject to review, and we
and not necessarily those of the Law Society of
Scotland. The Law Society of Scotland does not
as a good start, even if well short of what have not heard the last of negotiations. One
endorse any goods or services advertised, nor any is needed to repair the finances of many way or another, advisers will be kept busy.
claims or representations made in any advertisement,
in the Journal and accepts no liability to any person
for loss or damage suffered as a consequence of their
responding to, or placing reliance upon any claim or
Contributors
representation made in, any advertisement appearing
in the Journal. Readers should make appropriate
enquiries and satisfy themselves be fore responding
to any such advertisement, or placing reliance upon
any such claim or representation. By so responding,
or placing reliance, readers accept that they do so at
their own risk. On no account may any part of this If you would like to contribute to Scotland’s most widely read and respected
publication be reproduced without the written
permission of the copyholder and publisher, legal publication please email: peter@connectcommunications.co.uk
application for which should be made to the publisher.
© The Law Society of Scotland, 2021 Lynda Dawn Musab Hemsi, Mike Graeme
ISSN: 0458-8711
Towers Robertson Simon Mayberry Blair Thompson
Average circulation:
Print edition Jul 19-Apr 20: 13,788
is director of is an (co-authors) is a partner in is an executive
Digital edition May-Jun 20: 13,626 Public Law employment are partner and Land & Rural coach, working
Audit pending with Morton law partner senior associate Business across both
Fraser LLP with Rooney respectively with Gillespie business
Nimmo with LexLayton Macandrew and sport
January 2021 \ 3
THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND
VOL.66 NO.1 – JANUARY 2021
Perspectives Features Briefings In practice
04 Journal online 12 28 Civil court 38 Professional news
January’s website exclusives Lynda Towers’ overview of the Roundup, with appeal issues Legal aid; complaints proposals;
state of play post the Brexit social media guidance; RoS
05 Guest view 29 Licensing
deal and related legislation consultation; policy work
Melissa Rutherford and Tony What’s coming, COVID apart
Bone 40 Solicitor advocates
16 30 Planning
Marking 30 years since the law
06 Letters Dawn Robertson considers New rules for s 75 reviews
paved the way
Doing away with “Dear Sirs”; what a discrimination case
30 Insolvency
Reviews might mean for stress claims 41 Sir Gerald Gordon
Making pre-packs transparent
Brief profile as he retires from
07 Offbeat
19 32 Tax SCCR after 40 years
Quirky news; Profile column
Two employment lawyers First report from the CGT review
41 Ask Ash
08 President ask whether the rules on
32 Immigration A home based trainee feels a
Wishes and aims for 2021 comparators are too rigid
Curbing papers based appeals lack of connection
Regulars 20 33 Discipline Tribunal 42 Pro bono
Mike Blair looks at the recent Failures in a property case How doing it brings benefits to all
history of land reform, and
34 Property/planning 44 Risk management
09 People suggests it is far from over yet
Changing face of our inner cities Phone calls that prevent fraud
31 Consultations
39 Notifications 24 36 In-house 46 The Word of Gold
45 Archive Graeme Thompson likens Introducing new ILC members Resilience post-COVID and how
49 Classified lawyers to peak athletes in to show it
50 Recruitment coaching for best performance
47 Preparing for COP26
The Society’s survey, and
26 follow-up plans
Ally Thomson describes Hey Pro bono:
Legal’s arrival on the scene three case 48 The Eternal Optimist
and its adapting to COVID-19 studies Facing up to the year ahead
Page 42
ONLINE INSIGHT
P U B L I S H E D O N LY O N W W W. L A W S C O T. O R G . U K / M E M B E R S /J O U R N A L /
After Brexit: the employment Building better: housebuilding Investors and the Part of the fabric?
law outlook and climate change Government veto Office workers need to get back
Laura Morrison surveys the Natasha MacDonald reviews Paul Marshall and James into their offices: an unpopular
aspects of employment law most the means by which Millward explain the aims opinion or not? Musab Hemsi
likely to change now that the UK housebuilding and renovation of the National Security argues that some presence there
is no longer subject to European could play a greater part in and Investment Bill, which is necessary for many to make
Union requirements. achieving climate change targets adds to the Government’s their full expected contribution.
– but how can we incentivise powers to intervene in
the necessary investment? sensitive acquisitions.
4 / January 2021
OPINION
Melissa Rutherford
and Tony Bone
The founders of Trauma Aware Lawyers in Scotland believe Scottish lawyers,
and courts, need a better understanding of adverse childhood experiences and their
impact on those most likely to come into contact with the legal system
cotland is aiming to be one of the first to ensure that all individuals involved in the court system or legal
S
trauma-aware countries in the world. system in Scotland are treated with respect and not re-traumatised.
Compelling evidence is now available in the As a movement, our objective is to raise awareness of the effects
public realm that trauma can have a lifelong of childhood trauma within the legal sector in Scotland. We really
impact on both the physical and mental want to change the way that the whole of the justice system
health of a child, as well as their behaviour. treats people in the legal system, by raising awareness among
Children who have experienced trauma can lawyers and decision-makers of how trauma impacts on people
be impacted in the way they think, the way they interact with and the unforeseen consequences of their decisions in later life,
people, their learning and their risk-taking behaviour. which ultimately leads to a never-ending cycle of incarceration
Risk factors known to be linked to adverse childhood or an inordinate impact on the public purse. As we now know, all
experiences (ACEs) include alcohol or drug misuse and addiction, too often ACEs manifest in adolescence and/or adulthood in all
neglect, death of a parent, domestic abuse or violence within the sorts of ways. The old approach is
family, parental divorce or separation, a parent with mental health not working, and is certainly not
issues, sexual abuse and poverty. Academic studies have found helping those most affected by
that as the number of trauma factors that a person has experienced childhood trauma and whose skills
increases, so does their susceptibility – and their risk of having a and talents are lost forever.
range of physical and mental health conditions. Their mental health We would like to thank the Law
risk brings the increased likelihood of them ending up in prison, or Society of Scotland for putting a
engaging in violent and/or antisocial behaviour. CPD resource online on trauma.
Trauma Aware Lawyers in Scotland is a newly established We hope to work with the Society
movement of lawyers who are seeking to use their own personal in the future to create further CPD
and professional experience to educate all professionals involved in seminars and updates, and add
the legal system, including judges, court staff and law students. to these resources so they can
The founders are Melissa Rutherford (Rutherford Sheridan be accessed by the profession.
Solicitors), Tony Bone (Tony Bone Legal), Iain Smith (Keegan Smith The Society also recognises that
Defence Solicitors) and Nadine Martin (Harper Macleod LLP). We being trauma-aware is essential to
are four practising lawyers in Scotland who have, for one reason or provide a good service to clients. A
another, become aware of trauma and ACEs and who are committed quote from its website highlights
to bringing compassion to the legal system. We hope that we can this: “Trauma-informed knowledge
educate and influence further understanding of what having a is essential to elevate your client
trauma-informed legal and court system in Scotland means, and care skills within many practice
that the practice of the law can be empathetic and caring. areas, including family law, criminal
We felt like we couldn’t keep this to ourselves any more. This law, child law and personal injury.”
is so vital to how we treat our clients or those most in need of our Please contact us
help. As a result of our epiphany and our new learning, all four of for more information at
us now carry out our roles in a different way. Lawyers aren’t taught TraumaAwareLawyers@gmail.com. Find us on Facebook: Trauma
about trauma at all, despite the fact that most of the people we Aware Lawyers in Scotland, Instagram: @trauma_aware_lawyers_
represent in court have suffered trauma in their lives. scotland, Twitter: @traumaAwareLaw, and Linkedin group Trauma
We feel that we have a duty, or even an obligation now to share Aware Lawyers in Scotland.
what we know and to raise awareness of the impact of trauma on
the people we deal with. We need a person-centred approach for
both victims and accused persons within the legal system.
The court system is one where people are often in crisis and
addiction as a result of something that has happened to them. We Melissa Rutherford is co-founder of Rutherford Sheridan, Glasgow
must educate ourselves so that we have the empathy and deep and a board member of charity Indigo Childcare. Tony Bone
understanding of trauma in order to build relationships and trust, and practises as Tony Bone Legal, Kilmarnock.
January 2021 \ 5
VIEWPOINTS BOOK REVIEWS
Dear who? The Floating
Charge
A D J MACPHERSON
Dear Colleagues This form of address is not just PUBLISHER: EDINBURGH LEGAL
Very few of us will forget 2020. As a inaccurate, however. It represents EDUCATION TRUST
profession, we have shown resilience, something greater. The use of “Dear ISBN 978-1999611828; PRICE: £30
adaptability and creativity under Sirs” privileges the male norm. It tells This is the eighth volume in a series, Studies in Scots
incredibly challenging circumstances. women that we do not belong. Lady Law. Its author is a lecturer in commercial law at
2021 will, we hope, see the return of Hale, writing about the lack of women the University of Aberdeen. It is a revised version of
the normality so many of us crave. in the judiciary, noted that his 2017 PhD thesis, and is an excellent analysis of
2020 also gave us a chance to “the absence of women from the the subject matter. In the author’s words, “The work
reflect. The lessons we have learned bench is even more important than contained within this book is unashamedly academic
mean that we will never really go back our presence, in the message it yet also inescapably practical.” I agree totally.
to “normal”. In some ways this may be sends out”. We suggest the same The book is well laid out and easy to access. The
a good thing. The last year has forced can be said here. index is not as detailed as one might expect, but that
us to confront practices that we do not Fortunately, unlike increasing is a very minor criticism as it does not detract from
believe are working, and think about judicial diversity, there is a simple the comprehensive coverage.
how we create lasting change. So, in solution. It does not take radical The detail in the book goes well beyond that
the spirit of new year resolutions, we measures and is not resource which a busy practitioner is likely to require day-to-
suggest that one practice we should intensive. A number of firms in day, but when a detailed analysis of the nature and
all leave behind this year is the use of Scotland have already issued scope of a floating charge to heritable and moveable
“Dear Sirs” in formal letters. guidance and updated their styles. The property is required, reference should be made to
As you rush to catch the post, it Law Society of Ireland discontinued this book.
is easy to quickly open a firm style, the use of “Dear Sirs” last year. A number of topics are ably addressed, one being
paying little heed to the default Suggested alternatives include Dear the case for a floating charge attaching on the
masculine salutation. We have done Sir or Madam; Dear [firm name]; Dear appointment of an administrator (chapter 3). Chapter
it ourselves. In less busy moments, Solicitors; or Dear Colleagues. 6 contains a very good analysis of floating charge
you might pause and amend. However, Perhaps making this simple change enforcement. Part B of the book also contains a very
from our own experiences as junior will focus our minds on how to tackle useful review of Sharp v Thomson and the non-
women in the profession, we know the bigger problems, which do require floating charge case, Burnett’s Trustee v Grainger.
it is unlikely that you’ll start a wider strategic, collaborative action. Our The author is not slow to criticise the former; the
conversation about what those two gender pay gap still stands at 23%. review of the case law and the various commentaries
words represent. We tell ourselves Women make up fewer than 30% thereon is most welcome.
that it’s not the time or place. We of partners. A third of women who My central recommendation is that this book
worry that we’ll be seen to be causing responded to 2018 Law Society of should be a “must read” for solicitors involved with
a fuss over nothing, that there are Scotland research reported personal property and insolvency law and practice.
bigger issues at play. We say it experience of bullying, harassment
doesn’t matter. or sexual harassment. One hundred Professor Stewart Brymer, Brymer Legal Ltd.
Yet, as lawyers, we know that years since Madge Easton Anderson For a fuller review see bit.ly/2L1dM7f
accurate drafting does matter. Indeed, became the first woman law agent
we pride ourselves on it. However, in Scotland, there remains work
“Dear Sirs” is premised on an to be done. One Two Three Four:
inaccurate assumption that it will be As with any lengthy to do list,
a male colleague who receives your starting with a simple task can get the The Beatles in Time
letter. Given that our profession is now ball rolling. So, as we enter this new CRAIG BROWN
53% female, chances are that this year, let’s update the firm style and (4TH ESTATE: £20; E-BOOK: £4.99)
assumption is incorrect. Some say that prioritise equality in 2021. “This is one of the most engaging biographies
“Dear Sirs” is appropriate as it refers I have read in a long while.”
to the firm, not an individual. To this This month’s leisure selection is at bit.ly/2L1dM7f
we would say that the erasure of Seonaid Stevenson-McCabe,
all women partners in Scotland Katy MacAskill and Màiri McAllan, The review editor is David J Dickson
is regrettable. co-founders, RebLaw Scotland
BLOG OF THE MONTH ukandeu.ac.uk
How much freedom does the deal finally struck or legal change, in order to secure a competitive
with the EU leave the UK to make its own edge, risk provoking significant sanctions, which
rules? Not much, if this analysis by a self styled would apply pending any dispute resolution. The
independent research body is correct. UK might even have less autonomy than individual
Titled “British sovereignty run by Europe”, it EU states. Various comments follow the blog.
maintains that any UK moves, whether by subsidy To find this blog, go to bit.ly/39ipFxN
6 / January 2021
WORLD WIDE WEIRD
1
Love you like crazy
“Every part of this story is truly
bonkers” – the non-swimmer
Late show
Scot jailed in the Isle of Man for
breaking its COVID lockdown, after
crossing the sea by jet ski just to
on no shows see his girlfriend.
bit.ly/35aekhM
The Good Law Project, led by barrister Jolyon 2
Maugham QC, has been making a name for itself Big Mac and sighs
through its persistent digging into the acts of A Good Samaritan who offered
Government, particularly the processes by which a to pay for a stranger’s meal at a
number of high value contracts for COVID-19 related McDonald’s drive-thru got a shock
services have been awarded, including to people and when she was told the bill – but
companies with connections to ministers. has caused much entertainment
A regular line of legal challenge has been the on TikTok.
failure to publish details of these contracts as required bit.ly/2XcymDZ
by the Public Contracts Regulations 2015.
Perhaps irked by the constant demands (to comply
with the law?), it seems that HMG has engaged the
services of litigation support business Legastat, “for
support in its fight”, The Times reported. “How fitting,
then, that officials finally published details of the
contract eight days after they are required to do so
by law.”
The GLP’s response? “You couldn’t make it up.”
PROFILE
Jim McKay 3
We don’t
Jim McKay is head of CPD & Training at the Law Society of Scotland serve...
The Yaraka Hotel in Queensland,
Australia, has banned emus from
e Tell us about your career so far t What are the main issues for its premises and erected emu
First job was at Keele University, researching the Society/your department? barricades following a spate
corporate manslaughter combined with teaching Supporting the profession is number one for of bad behaviour from some
undergrad criminal law. I then joined a local everyone at the Society. In CPD we play our feathered regulars.
business who were in political publishing. I part by getting all the regulatory courses, like ab.co/38jPDBw
found that exciting and fast paced, and moved the new partner practice management course,
back to Scotland to open their Edinburgh working well online. Ditto all our training
office in my early 30s. After a stint at Holyrood programme, including the annual conference in
Communications, I joined the Society in June April 2021. We have put CPD packages together
TECH OF THE MONTH
2016. And very glad I did too. to help ease the financial burden, as well
as making CPD free to any member
r Why did you decide who has had the misfortune to become
Dubsmash
iOS, Android, free
to join the Society? unemployed.
Mostly, I was ready for a change after the With the festive season behind us,
best part of 15 years in a niche industry. u What’s your top tip Dubsmash will keep your spirits
When I saw the job advertised for new lawyers? up. The free app
it was one of those klaxon Keep an eye and half a mind lets you create and
moments; it just looked right for on how the whole business and share short videos
me. From the moment I walked people side works, and work of you lip syncing to
into the foyer, I knew I wanted on the skills needed an audio clip, which
to work there. It just seemed for that too. can be anything from
obvious that it was genuinely famous movie one-
going to be a great place to Go to bit.ly/2L1dM7f for the liners to animal lines.
work, in all sorts of ways. full interview It’s silly and lots of
fun. Available on
Apple and Android.
January 2021 \ 7
PRESIDENT
Amanda Millar
As we begin 2021, we should assess which of the changes enforced last year
mean progress and which do not; we should prize the value of acting together
as a profession; and we can only hope for progress on the major issues of the day
… welcome to the new world externally through some of the most challenging times in the
So
that is 2021! Society’s and the profession’s history. These challenges have
The first six months as your President not passed yet, but they have been and will continue to be met
had me contribute to our work on head on. I believe progress has been and will go on being made
climate change by being involved in if we continue to work together. Even when on different sides, as
more than 80 events across the world a profession like ours requires, the goals are the same – quality
without utilising any Air Miles, and advice, representation, delivery of justice, promotion and protection
I only travelled to Edinburgh once, of the rule of law, all in the interest of our civil society.
for the opening of the legal year. The
collaborative and often productive nature of much of this engagement On the wish list
with the profession, Government, public sector and wider stakeholders My hopes for the rest of my
is a positive I hope we can continue to build on. year are to see meaningful,
Many technological advances have been made through this delivered progress in achievable
experience. Some will stay, having brought efficiencies, savings and sustainable ways,
and some processes closer to the 21st century. Some should maintaining respect for the value
not, as they brought nothing but additional work and frustration, of the profession to society,
and jeopardised many of the fundamental values of our justice with improved and regularly
system, while still others have room for improvement or can reviewed levels of legal aid
be redeveloped now that the ideas have come to the fore. payments across the board,
LawscotTech will continue to work with motivated external partners prompt business recovery from
and the profession, with the aim of partnership working towards the economic shock suffered
meaningful and effective systems that work for all, without due to COVID, clarity in the
reinventing the wheel too often. new world out of the European
Union, and the opportunity
Lessons from 2020 to breathe and recover some
In my home our mantra is that communication is key. Regularly we of the resilience and goodwill
wonder why it seems people do not communicate with one another. used up surviving much of the trauma of 2020.
If 2020 taught us anything, it is that this remains more true than Oh and I’d really love not to have to explain (again) the
ever. Those who communicated, were listened to and collaborated importance of the rule of law and legal aid to our lawmakers,
through the challenges to find effective solutions, achieved more but I will if needed.
than those who “barried on” with their own ideas and agendas,
expecting others to follow.
The collegiality and engagement of the profession with the Law
Society of Scotland is something else I hope will be maintained for Amanda Millar is President of the Law Society of Scotland –
the future. The support of Law Society colleagues and members President@lawscot.org.uk
was invaluable to me in leading the organisation internally and Twitter: @amanda_millar
8 / January 2021
Intimations for the People section should be
People on the move
sent to peter@connectcommunications.co.uk
To advertise here, contact
Elliot Whitehead on +44 7795 977708;
journalsales@connectcommunications.co.uk
ABERDEIN CONSIDINE, Aberdeen
and elsewhere, have appointed
Greig Brown as mortgage
operations director, based at
the firm’s Edinburgh office. He
joins from MORTGAGE ADVICE
BUREAU in Scotland, where he
was head of operations.
BALFOUR+MANSON, Edinburgh
and Aberdeen, has promoted
two of its associates to partner,
effective from 1 January 2021:
Martin Walker, in the Litigation
team, who joined the firm as a From top (l to r):
trainee, and Private Client team Emma Letham,
Hannah Prentice,
specialist Graeme Thomson, Alison Reid, Sarajane
who joined as a senior associate Graeme Thomson Drake, and Leanne
in 2018. and Martin Walker Follan from Wright,
of`Balfour+Manson Johnston &
Mackenzie LLP
BOYD LEGAL, Edinburgh and
Kirkcaldy, has in Waverley Chambers, Tim Edward as a partner in its WRIGHT, JOHNSTON &
promoted Ladhope Vale, Galashiels. Dispute Resolution practice. He MACKENZIE LLP, Glasgow,
Rachael joins from DENTONS, where he Edinburgh, Inverness,
Brandon, DIGBY BROWN, Edinburgh and was a partner and head of its Dunblane and Dunfermline,
manager of its elsewhere, has announced the Commercial Dispute Resolution has promoted five members
Equity Release promotion of nine members of practice in Scotland. of staff. Emma Letham, of the
team, from senior staff across four of its offices, firm’s Family Law team at its
associate to company director. including four new associates. MOV8 REAL ESTATE LTD, Glasgow office, becomes an
Those promoted to associate Edinburgh and Glasgow, associate, and there are four
BURGES SALMON, are Lee Murray, Network team announces the promotion of Tracy new senior solicitors: Hannah
Edinburgh and (Ayr), Ryan Smith, General McAlpine, Head of New Build Prentice and Alison Reid, who
UK wide, has Personal Injury Litigation & Intermediary Conveyancing, work in the Private Client team
appointed (Kirkcaldy), and Megan Keenan, to Director of New Build & in the Inverness office, and
Nigel Watson Clinical Negligence and Intermediary Services. Sarajane Drake and Leanne
as a corporate David Henderson, Foreign Follan, commercial property
partner to lead its & Travel (both Glasgow). Three SCULLION LAW, Glasgow and solicitors in the Glasgow office.
Employee Incentives in the Edinburgh office advance Hamilton, has added to its court
team. He joins from BRODIES, to senior solicitor: Isabel Wosiak department with the appointment THORNTONS LAW LLP,
where he was a partner and head (Foreign & Travel), and Saira of two criminal law Dundee and elsewhere,
of its Employee Benefits practice. Ahmed and Zara Clark (both solicitors: Anna announce the promotion to
Serious Injury). They are joined MacKay, who joins partner of Gary Mannion,
CAIRN ENERGY PLC, Edinburgh by Joanne Gray, of the Serious as an associate of the Personal Injury
has appointed Anne McSherry as Injury team in Glasgow. Also from BRIDGE team in Dundee, and Lucy
company secretary. She succeeds promoted is Nicola Hoey in the LITIGATION, and Lucy Metcalf, of the Family Law
Duncan Wood, who has retired Glasgow office, who becomes McKenna, who has team in Edinburgh; and the
from the role after 22 years. a welfare rights adviser. joined the firm promotion of Janice Napier
Ms McSherry has worked at Cairn after completing to legal director in Business
since 2009. GILSON GRAY, Glasgow, her training at Law within the Commercial
Edinburgh, Dundee and PATERSON BELL. Property team in Perth.
CULLEN KILSHAW, Galashiels North Berwick, has promoted
and elsewhere, and IAIN SMITH & Denise Laverty, an accredited
PARTNERS, Galashiels, announce specialist in family law and
the merger of their practices accredited family law mediator,
from January 2021 as CULLEN and dual qualified in England
KILSHAW. Iain Smith & Partners’ & Wales, to partner in the
existing offices in Bank Close, Family Law team. She joined
Galashiels will house the merged Gilson Gray as a legal director
and enlarged Court departments in June 2019.
of both firms, while their other
staff will relocate to Cullen MBM COMMERCIAL, Edinburgh
Kilshaw’s headquarters and London, has appointed Above: Gary Mannion, Lucy Metcalf and Janice Napier of Thorntons Law LLP
January 2021 \ 9
January 2021 \ 11
U KI DAENNDT ITFHI E RE U
the final chapter?
A trade deal with the EU was completed and enacted at the last minute, but is far from the end
of the story. Lynda Towers sets the Trade and Cooperation Agreement in context, along with
the further UK and Scottish legislation passed as the Brexit process concluded
he end of an been clear that the only serious options The agreement, and the gaps
T
old year and on the table were a “no-deal” and The FTA itself comprises 1,246 pages
the beginning trading on WTO terms, or a free trade of “legally scrubbed” text. The headline
of the new agreement (FTA). good news is that no tariffs or quotas
year is The FTA became “thinner” on areas will be applied to goods being exported
usually seen of cooperation, on content and detail as from or imported into the UK. Less
as a time for time progressed. Thinking back over the good news is that there will be non-
optimism and Brexit journey, the impact of the FTA tariff barriers of an administrative
for looking now looks like a “hard Brexit” as it was nature, in the form of additional checks
forward with anticipation to new understood over the intervening years when goods move across UK-EU
challenges in the year ahead. Moving since June 2016. The UK is not part of borders and greater quantities of
from 2020 to 2021 has certainly met the single market or the customs union. required paperwork including customs
that challenge. We have vaccines There is no longer seen to be a role for declarations, phytosanitary certificates,
approved and ready to roll out to help the EU Court of Justice. The UK has the product safety certificates and rules
bring the COVID-19 virus under control. power to enter into its own FTAs across of origin documentation which will
We are promised by the experts and the world. It is now an independent now be required to accompany goods
the politicians that the world we know coastal state and sovereignty has been being traded. These will mostly be new
today will start to look more like the restored to the UK. The Government requirements resulting in additional
world we knew this time last year, if not claims it has delivered what it promised. costs to business. Delays seem likely
exactly the same. That might have been Finally agreed on Christmas Eve, at ports, in the short term at least,
the end of the story had Brexit not the FTA was signed off provisionally adding to costs. The UK has decided
come into play on 31 December 2020 by the EU President on 30 December to bring its checks in incrementally at
as well. and considered but not ratified by the two monthly intervals until summer
With the Prime Minister now EU Parliament on the same day. The 2021, but the EU began its checks
enjoying a substantial majority in the enabling legislation, the EU (Future immediately on 1 January 2021. It
House of Commons, it was always likely Relationship) Bill, was introduced into remains to be seen where the financial
that the UK would reach the end of the and passed in a single day by the UK balance comes to rest.
transition period and leave the single Parliament on 30 December. This was There appears to be a process
market and the customs union. The despite the Scottish Parliament voting agreed to manage fishing for the next
days when a second referendum was against giving legislative consent five and a half years, which allows EU
being suggested, a closer relationship to the bill. However, the size of the boats the right to continue to fish, albeit
was being sought with the EU and Prime Minister’s majority when the bill with the amount of catch decreasing
equivalence arrangements were passed the Commons, by 521 votes to incrementally, and UK fishermen being
contemplated disappeared with the 73, belies the concerns, politically and allowed to sell their products in the
election of the Johnson Government, commercially, as to what operating single market. This is a result which
if not before. While negotiations have within the terms of the FTA and the has pleased neither side’s fishing
been taking place between the UK and expiry of the transition period will fleet, suggesting that the next set of
the EU over the last year, obscured by mean for the UK’s economic and negotiations to determine what
the COVID-19 difficulties, it has long business future. will happen at the end of this period
12 / January 2021but not his UK law officer colleagues.
“Free movement of people between the UK The offending clauses were removed
and the EU has now come to an end, by the House of Lords, led among
others by Lord Hope of Craighead,
whether as workers or visitors” who lodged amendments. The removal
of these clauses was eventually
accepted by the Government as
will need to start now. as the bill which purported to allow part of the wider FTA negotiations.
The FTA does not deal with the Government to depart from The amendments also provided for
arrangements for Gibraltar (although international law, in this case the additional consultation requirements
an interim agreement on access Northern Ireland Protocol which was with the national authorities, including
by workers across the border has part of the Withdrawal Agreement, Scottish ministers.
been reached), financial services, but in a “specific and limited way”. The Act attempts to create a UK
or recognition of professional This resulted in outcry from the legal single market, the working of which
qualifications. Certain security and profession and led to the resignation is overseen by the Competition &
enforcement arrangements are of the Advocate General for Scotland, Markets Authority for the whole of
agreed in the FTA, but not to the same
extent previously enjoyed. Erasmus
exchanges will no longer be available
to most UK students, although they will
be able to access a UK scheme which
has yet to be set up.
A separate agreement, again settled
just before Christmas, deals with the
detailed implementation of the Irish
Protocol and how it is going to work
in practice to ensure an open trade
border on the island of Ireland. At time
of writing it is being suggested that the
checking infrastructure in ports is not
yet in place in Northern Ireland, the IT
systems are yet to be fully tested, and
the EU officials themselves, who have
an oversight role, may be hotdesking!
Free movement of people between
the UK and the EU has now come
to an end, whether as workers or
visitors. The FTA covers some of the
new arrangements, but it is clear there
is still some negotiation required to
finalise matters.
Much more legislation
Against the background of the FTA
being negotiated and undoubted relief
that agreement has been reached,
there remain a number of possible
legal challenges and uncertainties on
the horizon. The extra time afforded
by the transition period means that
a number of Acts have now been
passed in Westminster setting the
post-FTA framework within which
immigration (and related social
security), private international law
on agreements, fisheries, agriculture,
taxation and trade data will all operate.
Policy development in these areas
and making secondary legislation
continues.
The biggest constitutional change,
and possible area of legal challenge, is
the United Kingdom Internal Market Act
2020. It is perhaps best remembered
January 2021 \ 13U KI DAENNDT ITFHI E RE U
the UK. The aim is to ensure that there The bill also sets up an oversight regulatory arrangements and bodies
is mutual recognition of goods, which body, Environmental Standards fell away on 31 December, their UK
may cover regulatory requirements, Scotland. While the detail of how replacements may not yet be in place.
non-discrimination of goods (subject to this will work in practice has yet to Despite the best endeavours of those
certain exceptions which are set out in be published, it is clearly seen as the drafting replacement legislation, it
sched 1 to the Act), and the provision of enforcement body on the environmental may not be fully fit for purpose, since
services and professional qualifications functions under the bill. It is not beyond policies are still being developed
across the UK. This is a complex piece the bounds of legal possibility that it will and the negotiations have only just
of legislation and there is considerable be argued that the authorities exercising finished. There are bound to be lots of
scope for disagreement as to when the functions being exercised under the areas where the legislation is open to
and where the lines of the devolved two last mentioned pieces of legislation interpretation, and lawyers and clients
settlement have been crossed. have the potential to clash. will have to work their way through to a
To add further to this complication, pragmatic outcome, ultimately with the
the Scottish Parliament passed the Time does not stand still help of the courts.
UK Withdrawal from the European When the FTA was announced, Michel Perhaps we now have some inkling
Union (Continuity) (Scotland) Bill Barnier said that “the clock has stopped as to the meaning of that much
2020 just before Christmas. This has ticking”. He may have been correct so discussed phrase “Brexit means Brexit”.
two main areas of interest. First, it far as the deadline for negotiating an Or perhaps not. In any event it can
gives powers to Scottish ministers FTA between the UK and the EU was probably be safely predicted that we
to keep devolved legislation in step concerned. However, the hands of the lawyers had better hang on to our EU
with EU law. Secondly, it enacts the clock are going to keep turning for years law books and subscriptions to EU
core EU environmental principles to come. Despite its length, the FTA journals. It is not a dying expertise yet.
into Scots law as “guiding principles still feels like a framework document It is probably also the case that many
on the environment” which ministers with lots of matters still to be agreed. of our academics will face marking Lynda Towers
is director of
will have a duty to have regard to in There are important matters to the innumerable student essays on Public Law with
making policies on the environment. UK economy, such as financial and “What is UK Sovereignty? Discuss” Morton Fraser LLP
Environmental policy is a devolved related services, which are not covered for years to come. Who would envy
function in Scotland. by the FTA. Inevitably, although EU them that joy?
Locum posititions
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14 / January 2021Scottish Land Law
Publishing under the auspices of the Scottish Universities Law Institute, the second volume
to this well-established and respected work is a thoroughly updated and comprehensive
account of Scottish land law. It brings together material of significant practical importance
in relation to the rights and obligations inherent in the ownership of land.
Key legislation includes:
• The Conveyancing and Feudal Reform (Scotland) Act 1970
• The Title Conditions (Scotland) Act 2003
3rd Edition, Volume 2 • The Land Reform (Scotland) Act 2003
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Chapter 19: General Principles of Security Rights
Chapter 20: Standard Securities
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Chapter 22: Involuntary Heritable Securities
Chapter 23: Title Conditions and other Burdens
Chapter 24: Real Burdens
Chapter 25: Servitudes
Chapter 26: Judicial Variation and Discharge of Title Conditions
Chapter 27: Public Access Rights
Chapter 28: Nuisance and other Delicts
Chapter 29: Social Control of Land Use
Chapter 30: Compulsory Acquisition
Chapter 31: Community Rights to Buy
REUTERS/Russell CheyneEMPLOYMENT CLAIMS
Stress: a case
for the tribunal?
A recent EAT case raises interesting questions as to whether the Employment Tribunal or the court is likely to
be the more advantageous forum for the employee in some workplace stress claims, Dawn Robertson believes
he judgment handed requirement for an assessment of AB’s in Croydon, in August 2008, AB was
T
down by the capacity to conduct litigation. The EAT knocked down by a car. She suffered
Employment Appeal held that the failure to assess had not a broken leg, damage to her knee
Tribunal (EAT) sitting in rendered the tribunal proceedings void ligaments and nerve damage. She was
London in the case of and did not constitute unfairness to AB only able to start work two months later,
Royal Bank of Scotland amounting to an error of law. and then only with a leg brace, foot splint
plc v AB UKEAT/0266/18/DA & and crutches. In fact, she needed the foot
UKEAT/0187/18/DA (27 February 2020) The facts splint throughout her employment and
caught my attention as a former personal On her way to her first day of walked with a slight limp. Throughout
injury lawyer turned employment lawyer. employment as a customer services her employment the injuries continued to
This was an appeal heard by Mr officer at an RBS NatWest branch give her pain, affected her ability to work
Justice Swift (sitting alone) against the and to be at work. From November 2008,
decision at a remedies hearing, following AB received disability living allowance.
the conclusion that the claimant, AB, had RBS did not dispute that AB’s physical
suffered discrimination on the grounds condition amounted to a disability for the
of disability. AB contended that as a purposes of the Equality Act 2010.
result of the unlawful discrimination AB resigned in May 2014 after two
she had suffered a serious psychiatric significant periods of sick leave, first in
injury which prevented her from working July and August 2013 and then again
for the foreseeable future and which from the end of December 2013 until her
required round-the-clock care. resignation.
Royal Bank of Scotland (RBS) sought In its judgment on liability, the
to appeal the Employment Tribunal’s Employment Tribunal concluded that
decisions inter alia on whether (and to AB had been constructively dismissed
what extent) the psychiatric injury was and that the dismissal was unfair.
caused by the discrimination. Constructive dismissal resulted from
The appeal was dismissed on all but breach of the implied obligation to
one ground, namely that the tribunal maintain the necessary relationship of
erred in concluding that there was no mutual trust and confidence and the
implied obligation to provide a safe
16 / January 2021without the unlawful discrimination.
Readers may recall the seminal
judgment of the then Hale LJ in Hatton v
Sutherland [2002] ICR 1613, setting out
the 16 principles to be applied in a claim
for damages in respect of psychiatric
injury caused by stress in the workplace.
Propositions 15 and 16 were cited as
relevant in the current case, namely:
“15. Where the harm suffered has
more than one cause, the employer
should only pay for that proportion of
the harm suffered which is attributable to
his wrong doing, unless the harm is truly
indivisible. It is for the defendant to raise
the question of apportionment…
“16. The assessment of damages will
take account of any pre-existing disorder
or vulnerability and of the chance that
the claimant would have succumbed to a
stress-related disorder in any event.”
The distinction between these
two propositions is clear, if nuanced:
proposition 15 is intended for cases
where there is a concurrent cause of
working environment. In addition, the the extent of the psychiatric injury from harm, and proposition 16 is intended
tribunal concluded that discrimination which AB suffered. for cases where there is a pre-existing
had taken place: first, by RBS failing to As can be seen, although this was susceptibility for the individual to
make reasonable adjustments relating (inter alia) an Employment Tribunal claim, suffer the harm alleged, but a lack of
to AB’s work station and requiring AB aspects of the case read like a common concurrent cause.
to work on a branch till; secondly, as a law damages claim for workplace stress. Applying proposition 15, the
result of comments made to or about AB With that in mind, the question arises: is Employment Tribunal apportioned
on five occasions; and thirdly, by reason workplace stress handled better in the the cause of harm suffered by AB,
of a failure to permit AB to transfer to Employment Tribunal or in the court? concluding that 75% was attributable
another branch. to the unlawful discrimination and 25%
AB’s contention was that, as a result Effects of the discrimination to the accident. Having reviewed the
of the discrimination, she suffered As already mentioned, one of the core tribunal’s treatment of the conflicting
from severe depression. A consultant issues of the case was whether – and expert evidence, the EAT considered
psychiatrist engaged as an expert witness to what extent – the discrimination had that its assessment was one which was
for AB, diagnosed her as suffering caused AB harm. “reasonably available to it” and that its
from a severe depressive disorder One ground on which RBS sought apportionment of harm did not, therefore,
with psychosis. His stated conclusions to appeal the tribunal’s decision was disclose any error of law. As a result,
were that AB showed “severe signs that it should have reduced the amount RBS’s appeal in this regard failed and
and symptoms of multiple psychiatric payable to AB to take account of “the the assessment that 75% of the harm
disorders, namely severe depression, possibility that her psychiatric condition was attributable to its unlawful disability
anxiety and conversion disorders as would have occurred in any event by discrimination was upheld.
well as psychosis”. Crucially, he held the reason of her pre-existing vulnerability
view that both the tribunal (presumably and other psycho-social stressors”. Employer’s knowledge of
the then extant proceedings) and In other words, RBS’s position was claimant’s disability
discrimination were “the primary causes that the tribunal was wrong not to As noted earlier, RBS did not dispute that
of the current presentation”. reduce AB’s compensation on account AB’s physical condition, following the
RBS’s expert consultant psychiatrist of the possibility that her psychiatric accident, amounted to a disability for the
unsurprisingly disagreed, both as to condition would have developed even purposes of the Equality Act 2010.
the cause of AB’s psychiatric injury and The status of her mental condition was
the extent of that injury. As a result, it less clear, however. In his EAT judgment
was left to the tribunal, first to decide Mr Justice Swift stated that “either the
whether AB’s psychiatric condition “Constructive dismissal resulted tribunal concluded, or it was common
was the consequence of the acts of
discrimination that had occurred at
from breach of the implied ground, that AB suffered from a mental
illness that amounted to a disability”.
work, or whether it had been caused obligation... of mutual trust and He further noted: “During the
by matters predating those events (in
particular the accident); and secondly,
confidence and... to provide a safe course of her employment AB had two
significant periods of sick leave in
to resolve the disputes of evidence as to working environment” July and August 2013 when she
January 2021 \ 17EMPLOYMENT CLAIMS
was absent from work because those involved in workplace
of ‘low mood and physical stress litigation. While there
pain’; and then from the end may be concern around
of December 2013 until her whether disability discrimination
resignation at the beginning can be proved, there should be no
of May 2014 when she was concern around what can be recovered
absent from work by reason by way of compensation.
of stress.” The English case of Sheriff v Klyne
Notwithstanding the foregoing, Tugs (Lowestoft) Ltd [1999] IRLR 481
he went on to say: “the tribunal further confirmed that an Employment Tribunal
concluded that RBS could not have has jurisdiction to award compensation
reasonably been expected to know that by way of damages for personal injury
by reason of these matters AB suffered including both physical and psychiatric
from a disability for the purposes of the injury, caused by the statutory tort of
Equality Act 2010” (emphasis added). unlawful discrimination. The Court of
From the above extracts, it is clear Appeal confirmed that the statutory
that the Employment Tribunal has drawn language is clear that a claimant is
a distinction between, first, knowing entitled to be compensated for the loss
that AB suffered from a mental illness and damage actually sustained as a
that amounted to a disability during her result of the discrimination: the question
employment and, secondly, appreciating stress claim can be successful in the was one of causation.
that it was a disability which gained her Employment Tribunal, its unique set of While unfair dismissal compensation
protection under the 2010 Act. circumstances make it a difficult case on is capped in the Employment Tribunal,
In other words, the tribunal accepted which to rely too heavily. Unusually, the damages arising from unlawful
that RBS did not know that AB had claimant had a physical disability which discrimination are not. Therefore,
a mental illness which constituted a led to a difficult working environment, provided the claimant can demonstrate
disability for the purposes of the 2010 resulting in workplace stress which their loss was caused by the unlawful
Act. That the tribunal nevertheless developed into mental illness. Added to discrimination and can prove the loss
found in her favour would be staggering this was the need for the employer to alleged, an unlimited award, such as that
but for the fact that AB already had be aware of a disability: again, had the made in the instant case, can be made,
a physical disability as a result of the claimant not been able to rely on its including a claim for injury to feelings,
accident, and one assumes that the knowledge of her physical disability, it is akin to an award for pain and suffering
discrimination claim succeeded as a unlikely that she would have succeeded. (solatium). As a result of her requiring
result of what might be said to be the When comparing what is required 24/7 care, the damages claimed by
primary (physical) disability as opposed in the court to what is required in AB were considerable, and the overall
to the secondary (mental) disability. the Employment Tribunal, there outcome of the remedies proceedings
Put another way, it appears unlikely are similarities and differences. The was an order that RBS pay AB
that AB would have succeeded in her courts require proof of “an identifiable £4,670,535, together with pre-judgment
discrimination claim without that factor, psychiatric or psychological illness or interest of £54,266.
given the tribunal’s conclusion that condition”, whereas under the Equality
her employer did not know and could Act a disability is a “physical or mental Concluding comments
not have reasonably been expected to impairment” and the impairment must The personal tragedy at the centre of
know that she suffered from a mental have “a substantial and long-term this case has largely been overlooked
illness that constituted a disability for the adverse effect” on a person’s “ability to for the purposes of this article. It should
purposes of the 2010 Act. carry out normal day-to-day activities”. not be ignored, however. To give some
Although very different approaches, context, the following was recorded by a
So, which forum – court or being able to meet one of those tests medical consultant who examined AB for
employment tribunal? will often also mean being able to meet the purposes of the case:
One generally views the court as the the other: neither is, on the face of it, “[AB] presented with her back to me.
appropriate forum for workplace stress easier than the other. In terms of other She was observed to perform a variety of
claims – see, for example, Cross v criteria, causation is a requirement in movements throughout the assessment,
Highlands & Islands Enterprise 2001 SLT both court and Employment Tribunal for example, she was observed to slap
1060; Green v Argyll & Bute Council, 28 proceedings (see the comment on Sheriff herself, scratch herself, and rock to
February 2002, unreported; Taplin v Fife below), and foreseeability, at least and from. She communicated broken/
Council, 17 December 2002, unreported; superficially, is similar to the question of stuttering speech accompanied by other
and, more recently, cases such as knowledge of the employer in a disability non-verbal vocalisations.”
Easton v B&Q plc [2015] EWHC 880 discrimination context. The facts of this case may be
(QB), MacLennan v Hartford Europe Ltd Limitations aside, given the relative Dawn Robertson, remarkable in terms of the severity of
[2012] EWHC 346 (QB), and Miller v North lack of success of pursuers claiming employment law the psychiatric injury suffered by AB,
Lanarkshire Council [2019] SC EDIN 61. workplace stress in the Scottish courts to partner, Rooney primarily as a result of workplace stress.
While, on the face of it, this case date, the Employment Tribunal is a forum Nimmo As unusual as the case may be, it is a
supports the view that a workplace which should always be considered by sobering reminder to us all.
18 / January 2021EQUALITY
Are discrimination
comparators outdated?
Comparators are part and parcel of most discrimination claims, but is the requirement to find them always helpful?
Musab Hemsi and Simon Mayberry argue that more flexible rules would achieve a better balance
oth authors are relatively long Comparators are the longstanding barometer
B
in the tooth when it comes to our judiciary must use. But the profound
dealing with discrimination mismatch between the methodology of using
law. Both have spent years on comparators and the modern realities of work
either side of discrimination renders them increasingly unhelpful. Far too
cases, grappling with the often, they place a legal hurdle for litigants in
Equality Act 2010 and its predecessors, all the person to trip over, perhaps taking advantage of
while unable to shake the inkling that the reality that in today’s increasingly mobile,
something didn’t quite feel right. knowledge-based and differentiated economy,
Equality is, to our mind, a work in progress. comparators will often not be found.
As a legal, ethical and moral imperative, why do
we invest so much time, energy and cost into A need for balance
so many multi-day tribunal hearings, poring To go further, our experience is that such
over the minutiae of legal doctrine? It was inflexibility in the evaluation and adjudication
not so long ago that we marked the 10-year of workplace disputes no longer accords
anniversary of the Equality Act coming into with the inquisitorial nature of the UK
force. This seems like a sensible juncture to Employment Tribunals.
take a step back and examine how powerful a By treating comparators as an essential
weapon it has been in the war on prejudice. element of discrimination claims, tribunals
One school of thought is that the state of have their hands tied and face having to turn
contemporary, statutory discrimination law is a blind eye to unlawful acts of prejudice,
flawed; and one of the principal flaws is the bias and inequity.
requirement for comparators. The essential requirement of comparators
Put simply, comparators are those who unnecessarily narrows the scope of
are like a discrimination claimant but for the discrimination laws and disregards the central
protected characteristic being relied on in the lesson from claims such as harassment:
claim. Comparators have existed in our labour discrimination can occur without a comparator
laws for decades, so the Equality Act cannot be present. It forces us to apply a binary logic
blamed alone for any defect they contain. to disputes where, in practice, it is more often
the case that discrimination is covert, multi-
Appealing, but a hurdle layered, or unconsciously being carried out
Both conceptually and methodologically, why by the perpetrator. The growing complexity
do we even have comparators? Seriously, take around personal identity and the continued
a moment to think about it. Judges are bound expansion of protected traits means we are
to consider comparators in the vast majority of headed towards comparisons which produce
the discrimination claims that come before them false certainties, if we have not already
(certain claims, such as discrimination on the arrived there.
grounds of pregnancy/maternity, do not require We see a need for equality law to evolve
a comparator). Comparators appear to be the in order to balance prescriptiveness with
favoured heuristic for observing discrimination. simplicity. We do not propose doing away with
We can see the appeal. Lawmakers have comparators (actual ones or their hypothetical
created a process where tribunals are able abstracts), but rather removing them as an
to evaluate and adjudicate workplace claims essential step in proving discrimination.
without the need to engage too deeply in Doing so would allow the growth of our
workplace dynamics. It is a rigid, prescriptive equality laws and empower those who Musab Hemsi is a partner, and Simon Mayberry
structure of law. If no comparator can be adjudicate on them to replace arbitrary a senior associate, at LexLeyton
identified, the claim fails. Easy peasy. barriers with logic and reason.
January 2021 \ 19You can also read
