Dallas McMillan's Glasgow Lawyers' Blog
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So we are the start of yet another a new year but I wonder how many of you have made a new year’s resolution and whether this includes finally getting round to making that will or power of attorney you have been thinking about but putting off for so long. After all, we are not all quite as lucky as Sherlock! Or maybe you have been thinking about moving house but have been waiting for the right time.
Whatever your requirements or motivation, be it providing for your loved ones or ensuring that they can help you when needed or moving to that new home you have worked so very hard to achieve, good legal advice can be invaluable.
The right of workers to be accompanied by a companion chosen by the worker, not the employer, has been reinforced by a recent decision by the Employment Appeals Tribunal in the case of Roberts v GB Oils.
In terms of the Employment Rights Act 1999 s10(1) and(2), a worker can “reasonably request” to be accompanied at a disciplinary or grievance hearing by a companion “chosen by the worker” and satisfying the criteria set out in s10(3). Under s10(3) a worker is entitled to choose to be accompanied by either a Trade Union official who is employed by the TU, or by a TU official not employed by the TU but certified in writing as having relevant experience for these hearings, or by a colleague of the worker.
In Roberts, the employers were held by the EAT to have breached s10 by refusing the worker his choice of s10(3) companion. The employers had argued that they had been entitled to refuse the original companion chosen by the worker in his request to be accompanied, on the basis that the worker’s choice of companion made the request an unreasonable one under s10(1)(b).
The EAT on both cases, however held that an employer cannot use s10(1)(b) to refuse a request as unreasonable simply because the employer does not like the worker’s choice of companion. It held that the worker has freedom of choice of requested companion, as long as the companion satisfies one of the three criteria set out in s10(3). In other words, the issue of overall reasonableness or otherwise of the request to be accompanied (s10(1)(b)) does not involve consideration of the worker’s choice of companion under s10(3).
This is important protection of the worker’s right to choose is companion. It should be noted, however, that if worker deliberately chose a valid but nonetheless clearly unreasonable companion, while he would still technically win a tribunal claim under s10 if this request was refused, the tribunal could reduce the (max 2 weeks’ pay) award to nil on equitable grounds.
The government has published the draft Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2013. The draft regulations reflect the government's response to the consultation on proposed changes to TUPE, which was published in September 2013. In particular, the amendments will allow transferees to collectively consult with transferring employees before the transfer if the transferor agrees. They also provide that post-transfer changes to location can amount to an ETO reason so that redundancies due to a simple change of location will not be automatically unfair....
Dates for the Judicial Review hearings in both Scotland and England have now been fixed. These hearings are to determine the legality of the introduction of fees at the Employment Tribunal. The Court of Session will hear the Scottish challenge on 26th September 2013. The hearing in England will be heard by the Court of Appeal on 22nd and 23rd October 2013....
Today (9th July 2013) is the first day of the Judicial Review at the Court of Session in Edinburgh. The hearing is expected to last until tomorrow (10th July 2013) with a decision expected shortly after. A similar Judicial Review application is being considered in England although no date has yet been assigned for this hearing....
Last week the Supreme Court issued its decision in the case of North v Dumfries and Galloway Council. This has been a long running case with the key question being "who could be considered to be a comparator?" The Supreme Court interestingly upheld the original decision of the Employment Tribunal....
The Government is consulting at the moment (and until 15th February) about their proposals for compulsory early conciliation efforts by claimants, whereby they will have to notify ACAS of intended tribunal claim in advance of lodging it....
The Government have issued a draft set of regulations (The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013) intended to come into force on 6th April which affect any proposal to make at least 20 employees collectively redundant from that date on....
The Scottish Government has recently published its study into the current system for medical negligence claiming in Scotland.
The study was commissioned to inform the work of the No-fault Compensation Review Group which was established in 2009 to consider the potential benefits to patients of the introduction of a no-fault compensation scheme for medical negligence claims in Scotland.
According to the Executive Summary, findings suggest that patients' grievances, complaints and even claims are not necessarily related to a specific medical event but rather to communication problems, staff attitudes and poor general care. An improved complaints procedure would give complainants a greater sense that they were listened to and that lessons were learnt from their complaint.
The settlement of a claim is influenced by a range of factors. This includes the level of experience of the pursuer’s solicitor in medical negligence claiming and the financial value of the claim. Relatively small value claims appear less likely to result in settlement. In those which settle, the cost of dealing with the claim often exceeds the award. The research suggests that small financial claims might be better dealt with through a complaints system which permitted a moderate level of financial payment in some claims.
The study explored the potential expenditure implications of a no-fault scheme based on the analysis of data on closed cases. Estimates were calculated based on a range of assumptions about how a no-fault system might operate as well as costs of the current system in recent years. At the lower end estimates for a no-fault compensation scheme would be similar to the cost of existing schemes whilst at the upper end, costs could increase by one half.
A no-fault scheme will not necessarily address non-clinical aspects of care. It is therefore important that any new scheme is linked into the wider process by which patients attempt to resolve disputes.
Contains public sector information licensed under the Open Government Licence v1.0.