Employment Matters///

Blog by Bruce Caldow

Employers face a wide range of challenges every day. As a law firm which advises some of the best known brands and public sector bodies in the country, we have brought together some recent case examples that will help keep you up to date on pitfalls to avoid and best practice to use. In this issue, we look into a judgment on employment status; the potential vicarious liability of an employer for the actions of an employee; and the latest example of the Employment Appeal Tribunal’s interpretation of TUPE.

Employment Matters Seminar//

Please click on the link below for more details of our upcoming seminars. The seminars will focus on a number of topics currently affecting organisations including TUPE, business transfers and procurement and will be of interest to a variety of departments including Human Resources and those involved in contract services.

Employment Matters Seminars

Annual Retainer Scheme//

Many of the firm’s clients benefit from the employment team’s retainer scheme, which offers clients all of the essential elements to a service that helps clients maximise the management and performance of people whilst handling associated risks. The scheme operates on an annual basis with a low-cost initial fee, with benefits tailored to the client’s individual needs. For more information, click here or contact us directly.

Articles///

Stringfellows dancer found to be an employee///

Quashie v Stringfellows Restaurants Ltd UKEAT/0289/11

This is the latest in a recent series of cases considering the employment status of individuals who work under unconventional arrangements. In this particular claim, Ms Quashie worked as a dancer for Stringfellows club. When she started work in June 2007, she was not given a contract nor a copy of the House Rules, but was issued with a similarly framed introductory document about the establishment. Read more///

Employer may be vicariously liable for murder of employee///

Vaickuviene and others v J Sainsbury plc CSOH 69

Mr Romasov and Mr McCulloch were both employed as night-shift shelf stackers at a Sainsbury’s supermarket in Aberdeen. Mr McCulloch was a member of the British National Party and known to hold extreme and racist views about Eastern European workers coming to the UK. Read more///

TUPE did not apply to employee who spent 100% of his time on a terminated contract///

Seawell Ltd v Ceva Freight (UK) Ltd and another UKEATS/0034/11

The Claimant was employed by Ceva Freight (UK) Ltd (“Ceva”) in their business of freight forwarding and management logistics. Within Ceva’s warehouse, the workforce was organised into two separate groups, one for “inbound” goods and one for “outbound” goods. The outbound group was composed of eight employees, including the Claimant. Whilst the other employees in the group spent their time on various contracts, the Claimant spent 100% of his time working on an account for Seawell Ltd (“Seawell”). Read more///

Hamilton v Ferguson Transport (Spean Bridge) Ltd and Thomson v Dennis Thomson Builders Ltd

Blog by Fergus Thomson

I would like to share the link below which describes the decision on the appeals in the cases of Hamilton v Ferguson Transport (Spean Bridge) Ltd; and Thomson v Dennis Thomson Builders Ltd. Both cases involved claims for loss of society following a fatal accident under 1(4) of the Damages (Scotland) Act 1976 (as amended).

The appeals related to the amount of damages awarded by juries. In both cases the appeals were successful and defenders’ motions for a new jury trials were granted. Of particular interest is paragraph [76] where the Lord President comments on the current absence of judicial guidance to juries of appropriate levels of damages and suggests this should be changed.

http://www.scotcourts.gov.uk/

 

Section 107: just the new section 66?

Registered Social Landlords (RSLs) will be familiar with the terms of section 66 of the Housing (Scotland) Act 2001, which required RSLs to obtain written consent from the Scottish Ministers (acting through the Scottish Housing Regulator) for certain disposals of land or property. On 1 April 2012, section 107 of the Housing (Scotland) Act 2010, (the “Act”) came into force and replaced the former section 66.

At first glance the terms of section 107 are similar to those of section 66: RSLs must seek the consent of the Scottish Housing Regulator (the “Regulator”) to dispose of land or other assets (“disposals”), unless that disposal is exempt. However, section 107 differs from section 66 in two significant ways.

For more information about how this could affect you, view our extended blog.

Blog by Derek Hogg, Harper Macleod

District Heating Loans Scheme Now Open

The Scottish Government’s District Heating Loan Fund opened for the submission of ‘expressions of interest’ in May 2012. The loan fund aims to support the development of district heating networks in Scotland through the provision of capital loans.District heating – a system for distributing heat generated in a centralised location for residential and commercial heating requirements – aims to improve efficiency and cut carbon emissions.

The loan fund is open to local authorities, registered social landlords, small and medium sized enterprises and energy services companies, for low carbon and/or renewable technologies, in order to help them implement district heating projects to benefit local communities. Individual householders are not eligible to participate.

Currently, only expressions of interest are being invited – full applications for participation in the loan fund will be available from the Energy Saving Trust in due course.

The expression of interest form details the key features of the loan, which are as follows:

  • Loans of up to £400,000 per project are available to be repaid over a period of up to 10 years
  • Low interest rate of 3.5% applies
  • No security is required
  • Loans will be made available following a competitive bidding process
  • Capital loans may be offered for up to 100% of the total project costs (assuming the project costs are within the £400,000 threshold)
  • Technical support may also be made available

If we can assist in identifying whether a development project can incorporate a district heating system, and how to then procure the construction, implementation and operation of the system, please get in touch.

Blog by Derek Hogg, Harper Macleod

Electricity Act application fees consultation

Blog by Lee Murphy, Partner, Harper Macleod

As we advised in a previous alert, the Scottish Government is currently consulting on a new fee structure for planning applications in Scotland. The Government has now launched a consultation proposing the revisal of the fee structure for electricity generating stations. These fees are currently set by The Electricity (Applications for Consent) Amendment (Scotland) Regulations 2006.

Onshore electricity generating stations of less than 50MW are determined by the Planning Authority under The Town and Country Planning (Scotland) Act 1997. Applications for electricity generating stations of more than 50MW onshore and 12-200 nautical-miles offshore, those of more than 1MW within Scottish Territorial Waters, and applications for overhead lines are considered by Scottish Ministers under The Electricity Act 1989. The Government is concerned there would be a discrepancy with the planning applications fees.

The consultation seeks views and poses the following questions:

1. Should the fee for applications >50MW be set in line with those <50MW?

2. Should the application fee be capped at £100,000?

3. Should applications for thermal generation stations incur a larger fee?

4. Should applications for s37 Overhead Lines be raised in line with those for s36 Generating Stations?

5. Should the fee for applications not exceeding 10MW be retained at the current level?

6. Should the portion of the fee for onshore applications under The Electricity Act paid to Planning Authorities be split with half paid at the time of application and half paid when a full consultation response is received?

The consultation paper can be found here:

http://www.scotland.gov.uk/Resource/0039/00393472.pdf

If you require any further information please contact Lee Murphy.

Planning Reforms in Scotland 2012 – Increase in Planning Fees to £100,000 (Maximum)

Blog by Lee Murphy, Partner, Harper Macleod

Blog by Lee Murphy, Partner, Harper Macleod

Our blog at the end of March highlighted the current Scottish Government consultations, due to close on 22 June 2012.

One of the five consultation papers proposes an increase in the maximum planning application fee to £100,000. The amount and details vary depending on the type of development. New fees are proposed for renewal of planning permission although the Government states the changes in fees for business and commercial developments are designed to encourage expansion of SMEs.

We have prepared notes for different types of development and these can be accessed by clicking on the following links:

Other consultation papers include the extension and introduction of permitted development rights and the delivery of development and infrastructure. All five consultation papers can be accessed by clicking on this link:

http://www.scotland.gov.uk/planning/consult

For further information or advice please contact me at lee.murphy@harpermacleod.co.uk or using contact details on our website.

Trade union application for judicial review rejected

In the case of R v NHS Shared Business Services Ltd and another, trade union Unison sought to challenge the decision of ten primary care trusts (“PCTs”) to enter into contracts with NHS Shared Business Services Ltd (“SBS”) for the provision of family health services. Previously, the services were provided in-house, but as part of an effort to reduce costs the decision was taken to outsource.

The basis of the challenge was that the PCTs had acted in breach of the Public Contract Regulations 2006 (“the Regulations”). It was argued by SBS that the Regulations were inapplicable on the basis that the contracts were entered into pursuant to a Framework Agreement already in place. This was not, however, the substantive issue to be considered by the court: Unison’s interest in the matter to satisfy the conditions for judicial review had first to be determined.

It is established that remedies are available to economic operators where there has been a breach of the Regulations. In as far as Unison is concerned, since it is not an economic operator and would have no right to enforce any statutory duty owed by the PCTs, whether owed to itself or to its members, the court determined that its only possible means of challenge was by way of judicial review.

The court noted that it is likely that breaches of the Regulations will more often give rise to private rather than public law remedies, the latter being relatively rare. Indeed, no previous example of a trade union seeking a public law remedy in the context of the Regulations was apparent to the parties to the action. The court found, however, that this was not a reason to suppose that judicial review was not legally possible.

It was therefore necessary to establish whether Unison satisfied the conditions for “standing”.

The court found that it is not permissible for any trade union, or any individual worker, to have a potential public law remedy every time it is proposed that a particular service in the public sector should be outsourced. Indeed, there is a “general disinclination to permit challenges to commercial decisions by public bodies”. Moreover, in the particular context of procurement, there has apparently been a decision by the legislature to confine the specified remedies to commercial competitors.

The court’s ruling was based on the application of a test set out in the case of R (Chandler) v Secretary of State for Children, Schools and Families [2010]:

“We incline to the view that an individual who has a sufficient interest in compliance with the public procurement regime in the sense that he is affected in some identifiable way, but is not himself an economic operator who could pursue remedies under Regulation 47, can bring judicial review proceedings to prevent non-compliance with the regulations or the obligations derived from the Treaty, especially before any infringement takes place… He may have such an interest if he can show that performance of the competitive tendering procedure in the directive or of the obligation under the Treaty might have led to a different outcome that would have had a direct impact on him. We can also envisage cases where the gravity of a departure from public law obligations may justify the grant of a public law remedy in any event.”

The question was whether Unison could show that if a compliant competitive tendering procedure had been used, it would have led to a different outcome having a direct impact on its members. The court considered that the burden rested on Unison to evidence their claim that this was the case. Unison was unable to do so, particularly since there were no alternative bidders and it was, accordingly, not possible to know the terms on which others would have bid to provide the services. Unison was unable establish that a competitive tendering procedure would have led to a different outcome which would have had a direct impact on its members. Accordingly, Unison failed to establish an actionable interest.

This blog was provided by Ruth McNaught, Solicitor at Harper Macleod for Government Opportunities.