Knowledge

The standard of proof applied by a disciplinary tribunal or panel can be a source of confusion and has been a cause of ongoing debate in the context of professional discipline and regulation.  This is particularly the case where the disciplinary scheme in question does not specifically state the standard of proof to be applied.  Even amongst those schemes (probably the majority) which do, there is no consensus as to the approach to be adopted.  Whereas some professional disciplinary regimes insist upon the application of the higher criminal standard, others would apparently regard the inter

Since the entry into force of the Freedom of Information Act 2000 and the Freedom of Information (Scotland) Act 2002 on 1 January 2005, the general public and those in business seem, by and large, to be well aware of the potential benefits of the legislation.  Information covering a plethora of topics has been accessed and used for a huge variety of purposes.  Indeed, public authorities subject to freedom of information legislation have recorded a larger number of information requests than were expected prior to the entry into force of the legislation, and appeals to the UK and Scottish Inf

In the second of this regular slot, we explain the difference between Green and White paper. Should you wish any parliamentary procedure or terminology explained please speak to your usual Shepherd and Wedderburn contact.

In the world of information legislation in Scotland, the Freedom of Information (Scotland) Act 2002 (“FOISA”) reigns supreme. But is this Act the most appropriate tool to use in all circumstances?
The answer is most definitely no. Lurking behind this headline Act are two pieces of other information-related legislation that, in many circumstances, are more powerful tools to access and use certain information.

Access rights

In Green v DB Group Services Limited, the High Court upheld an employee’s claim of bullying and harassment and awarded £800,000 in damages on the basis that the employer had breached its duty of care towards the employee. The largest part of the award was £640,000 awarded for future loss of earnings and pension and this marks the case out as being unusual.
The implications of this case will be discussed in our next publication.

In a recent decision, the UK Information Commissioner gave useful guidance on what constitutes a public authority for the purposes of the Environmental Information Regulations 2004 (“the EIRs”). As the definition of a public authority is wider under the EIRs than under Freedom of Information legislation, it is important for bodies to be aware that, while they may not be subject to Freedom of Information obligations, they may nonetheless be under an obligation to disclose environmental information under the EIRs.

A recent decision of the UK Information Commissioner looked at the issue of when information is held by a public authority.  The Freedom of Information Act 2000 provides that only information which is held by a public body, or held by a third party on behalf of a public body, can be disclosed.

The High Court’s recent decision in Cameron and Others v Network Rail Infrastructure Limited [2006] EWHC 1133 (QB) provides some comfort to regulated utilities as to their possible status as hybrid public authorities under the Human Rights Act.
Background

While the UK has seen the introduction of wide ranging freedom of information laws over the last two years, the EU remains veiled from its citizens behind its own rules for public access to documents.  The recent judgment of Franchet and Byk v the Commission highlights the ongoing disparities between domestic and EU law. Freedom of Information in the UK
The UK has opened its public bodies to increased public scrutiny in recent years in line with other countries across the world such as the USA, Canada and New Zealand. 

Procuring and implementing an ICT system within an organisation can be a stressful task. High profile failures in both the public and private sectors hit the headlines all too often. The National Audit Office’s report last month on the £6.2bn NHS IT upgrade in England put many of the challenges firmly in the spotlight.

The Employment Tribunal has jurisdiction to hear breach of contract claims and can award damages of up to a maximum of £25,000.  A question which has arisen in case law in recent times is whether an individual whose breach of contract claim is assessed at more than £25,000 damages in an Employment Tribunal can recover the excess over £25,000 in a claim brought in the civil courts. 

Often, the first thing that springs to mind when a landlord is faced with a defaulting tenant is to irritate the lease, get the offending tenant out, and re-let the premises. While this may turn out to be the best course of action, the recent Court of Session case of Marcus Dean t/a Abbey Mill Business Centre v Tony Russell Freeman serves as a reminder to landlords to review the situation before serving a notice to irritate to the tenant, as otherwise they may well find that the effect of the notice is not what they had intended.

Much has been written in the press recently about the extent of the public’s entitlement to exercise rights of access over land owned by others, under the so-called “right to roam” legislation. Such rights can be exercised for recreational or educational purposes, or for commercial activities of a type which can also be carried on uncommercially.  But what about exercising rights of access to get to your own land over someone else’s property?

The Court of Appeal in Blockbuster Entertainment Ltd v James has held that it will be extremely unusual and only in exceptional circumstances that a claim that has reached the point of a full tribunal hearing will be struck out, even where the claimant has behaved unreasonably. Rule 18 of the employment tribunal rules provides that a claim may be struck out by a tribunal of its own motion or on the application of either party for one of the following grounds: 

The Employment Appeal Tribunal in Moyhing v Barts & London NHS Trust has held that an NHS Trust discriminated against a male nurse who was required to have a female colleague present when administering an ECG to a female patient.

Following the Stadt Halle, Commission v Austria and Parking Brixen cases last year the European Court of Justice (“ECJ”) has provided further clarification on in-house awards in Carbotermo SpA v Comune di Busto Arsizio, AGESP SpA C-340/04.
The ruling discusses the tests (set down some years ago in the Teckal case) that must be met by a contracting authority before it can sidestep the public procurement rules and award an ‘in-house’ award, e.g., to its own services divisions.

It may sound trite to suggest that you should “say what you mean” in missives for the purchase of property, but the recent Sheriff Court decision of Park Lane Developments (Glasgow Harbour) Limited v Jeffrey Jesner illuminates the dangers of ambiguous drafting.

Prior to 1 October 2005, harassment was not defined within the Sex Discrimination Act 1975 (SDA) and was viewed as a form of indirect discrimination. The Employment Equality (Sex Discrimination) Regulations 2005 have changed this by inserting a new section 4A into the SDA, which defines harassment as being either:

Unwanted conduct on the ground of the claimant’s sex; or
Unwanted conduct of a sexual nature.

In either case, the conduct must have the purpose or effect of:

The ECJ has held in the conjoined cases of Robinson-Steele v PD Retail Services, Clarke v Frank Staddon Ltd and Caulfield & others v Hanson Clay Products Ltd that rolled up holiday pay is precluded by the Working Time Directive. However it also ruled that any payments already made in respect of holidays under a rolled-up holiday pay scheme can be set-off against the payments due during the holiday.

As the number of recent cases appearing before the courts relating to parking issues and disputes bears out, having the ability to park near your property is something of an emotional issue, and one on which people are quite prepared to litigate. Several cases over the last two or three years have considered whether or not a servitude right of parking could be said to exist, but in the recent Sheriff Court case of Holms v Ashford Estates Limited, title to the parking space in question had actually been given, and a right of access to the space granted.

A brand is the public face of every business and one of its most valued assets. As more and more businesses operate at an international level, so the importance of protecting their brand internationally increases.
The value of a brand can far outweigh the other tangible assets of a business. In some cases, the top global brands can account for as much as 75% of their organisation’s total stock market value.

Brussels will be on holiday from this Thursday to next Tuesday
Ministers could decide to suspend EU aid to the Palestinian Authority, after a government led by the islamist Hamas movement took office last week.  Hamas has so far not met EU demands to recognise Israel, renounce violence and accepted the peace process, all of which have been mentioned as conditions for EU aid to continue. But some member states are concerned that a withdrawal of aid could lead to instability and let states like Iran gain influence.

Supermarket chain Asda has been ordered to pay a total of £27,750 in compensation to 37 Asian workers for racial discrimination. It transpired that a manager at the Lutterworth branch in Leicestershire called out their “foreign sounding names” over the public address system in an attempt to ensure that the company was not employing illegal immigrants. The manager asked the employees to produce documents to prove they had the right to work in Britain, despite the fact that several of the employees had been with the company for 18 years.