The impact of UK Law on sport
By Stephanie Crainey, Ross Codona and Briege Elder (Editor: SJ Crossan)
Sport is often viewed as a special entity whereby the law and legal systems do not directly interfere with its rules (Laver, 2020). Therefore, the rules under which a particular sport is played are not an area where the legal system will usually interfere.
The government in the United Kingdom has adopted this non-interventionist approach to sport, meaning there is no general law for sport. Instead regulation is left to the National Governing Bodies (NBGs) (Bennett, 2019).
However, with the turn of a new decade and the economic crash caused by the COVID-19 pandemic, some major issues in sports law have arisen, including whether an athlete is an employee or worker, the terms and conditions governing athletes and their use of social media platforms. Can these issues possibly be addressed, never mind resolved?
Is an Athlete an employee or a worker?
Above British cyclist, Jess Varnish (right) who is currently involved in legal action against British Cycling and UK Sport over her employment status
The question of an individual's employment status is always up for debate no matter which profession we are discussing. The focus of this question, in recent times, is mainly focused around the gig economy. This type of work might involve individuals providing a service e.g taxi driver (Uber) or food delivery (Nicholson, 2019).
However, due to the nature of the work (short-term and very insecure), gig economy workers are not usually granted the same rights and protection as employees under UK employment law.
Attempts have now been made to address this situation: in 2017, Matthew Taylor, Chief Executive of the Royal Society of Arts and former Downing Street adviser, was commissioned by the UK Government to conduct an independent review on modern working practices; and in the US State of California, Assembly Bill 5 was passed into law in 2020 giving gig economy workers employment status. The Taylor Review looked at the growth of the UK gig economy and considered its implications for worker rights and responsibilities (Nicholson, 2019). Despite the widespread attention that the Californian Assembly Bill 5 and the Taylor report both received, there is still not sufficient clarity surrounding the status of workers who provide services in the gig economy.
In 2018 the issue of employment status and sport received a lot of media attention when former Great Britain cyclist, Jessica Varnish argued that she 'should be considered an employee of British Cycling or of the funding agency, UK Sport.'(McGowan, 2019). The world silver medallist set out to prove she was, in fact, an employee in order to enable her to sue British Cycling and UK Sport for both wrongful dismissal and sexual discrimination, after she was dropped by team GB before the 2016 Olympics. Shane Sutton, former British Cycling director, was found to have used sexist language toward Varnish, although he denied these claims. Sutton later left his post with British Cycling.
Unfortunately, for Varnish, she lost her claim for wrongful dismissal at the Employment Tribunal in early 2019. Put simply, the Tribunal held that she was not an employee of either British Cycling or UK Sport and, therefore, she was not entitled to bring such a claim. Varnish has now appealed to the Employment Appeal Tribunal.
The appeal hearing could either overturn the decision of the Tribunal or order a new hearing to take place. Varnish stated:
"I want to give others the opportunity to hold to account employees of governing bodies, who they interact with on a daily basis, and have significant control over their careers and opportunities."
She added:
"I continue to think it's unfair that athletes still have no structured means to do this, and I hope this appeal will be the first step towards affecting change, and bring about a fairer, more modern and high performance system in the UK where athlete welfare is not just a sound bite, but something that we all believe in." (McGowan, 2019).
In response to her statement, a British Cycling spokesmen added:
"We very much regret that Jess has been advised to pursue the route of an employment tribunal when other avenues were available to her….. We will continue to represent what we believe are the best interests of every rider currently supported through the high performance system, and all those in our sport who hope to one day compete at an Olympics or Paralympics." (McGowan, 2019).
Employment rights: employees vs workers
Determining the question of Jessica's Varnish's employment status (employee or worker) is vital to this case as it will decide what employee rights she is entitled to (if any).
True, most workers are protected against unlawful discrimination in terms of the Equality Act 2010, and harassment and victimisation in relation to 'whistle-blowing' actions (reporting of wrong doing in the work place). However, you must be an employee in order to be protected from unfair and wrongful dismissal (CIPD, 2020)
Section 230 of the Employment Rights act 1996 defines an employee as "an individual who has entered into or works under a contract of employment."
Over many years, UK courts and Tribunals have developed specific tests that must be fulfilled in order to assess an individual's employment status (Crossan, 2017). These include:
Mutuality of obligation
The control test
The economic reality test
The organisation or integration test
The definition of a worker (which is a wider concept than an employee) can also be found in different pieces of legislation e.g. the National Minimum Wage Act 1998 and the Working Times Regulations 1998. The Chartered Institute of Personnel Development (CIPD) defines a worker as:
'an individual who undertakes to do or perform personally any work or service for another party, whether under a contract of employment or any other contract.'(CIPD, 2020).
Although the CIPD definition is based on the Employment Rights Act 1996, the definition of worker varies from statute to statute.
As in other parts of the UK employment market, the employment status of athletes will often be a contested concept, meaning that the various tests listed above will have to be deployed by the courts and Tribunals to resolve the issue. It is notable that a large part of Jessica Varnish's original Tribunal action focused on the control test i.e. she had to follow the training regime laid down by British Cycling in order to be eligible for continued funding from UK Sport.
Athletes in the world of social media
Social media is a great way for an athlete to connect with their existing fans. As well as this, it also allows you, the individual fan to connect with others whom you have never met, such as other fans of your team/sport, or supporters from your hometown etc. Athletes, amateur and elite, can have their use of social media restricted and regulated through provisions contained in Standard Player Contracts.
This is completely understandable from the point of a view of an employer or sponsor because an athlete's online activities/posts may bring about critical, reputational harm and financial loss to partnered clubs and associations. Athletes' contracts may contain certain restrictions on what they can and can't post on social media. However, these restrictions may or will vary from specific social media targeted polices ("blackout" before during and after games), to more general restrictions which cover wider aspects of an athlete's behaviour (Social Media In Sport: Top Tips, 2020).
Clubs and organisation are urged routinely to remind athletes with regard to what is appropriate and inappropriate online behaviour. This can incorporate a reminder to athletes that, while they are not participating in the activity, they still have commitments to the employer and sponsors and are expected to stick to an agreed code of conduct – just as though they were working. Athletes may have both a personal and professional social media account, but the restrictions and requirements that they are expected to adhere do not change.
Social media allows athletes to secure sponsorship. Platforms such as Facebook, Instagram and Twitter are just some of the ways to reach thousands of people who you would not normally be able to target.
In the UK, athletes and brands must take care when posting promotions and sponsored posts. This is regulated by the Advertising Standards Authority and the Committee of Advertising Practice Codes. The CAP code requires that all advertising is easily identifiable.
In 2012, professionalfootballers, Wayne Rooney and Jack Wilshire broke this requirement after they posted a tweet under Nikes campaign slogan '#makeitcount'. The two athletes failed to make it clear that the tweets were in fact from Nike's marketing communications. For an athlete or any individual using social media for promotional purposes, they must add '#spon' or '#ad' to a post, something which both Rooney and Wilshire failed to do. This helps to make the advertising easily identifiable and prevents anyone from failing to meet the requirements (Social Media In Sport: Top Tips, 2020).
A delicate balancing act
Guidelines for athletes to follow for social media may vary from each profession. It's no surprise that what Athletes post can be seen potentially by millions of people around the world. There is a need to ensure that, before posting any content, they are happy with what they are about to upload. Are they happy for the post to be linked back to them and be easily accessible forever? Would they be happy if the post was to end up appearing somewhere which was not intended e.g TV, gossip magazines/blogs? It can be a very delicate balancing act.
It is important to respect yourself, your sport and the club/organisation of which you are part. Anyone, especially a public figure (such as athletes), must ask themselves, how might this be portrayed or received by my followers? Will this reflect negatively upon their "role model" status? Could my post effect sponsorship for them or the sport?
These are just a few guidelines that Scottish athletes have to consider Athletes must also ensure that the amount of time they are spending on social media is not affecting their performance. All of these factors are essential when considering what content to upload and share with your followers on social media. Ultimately it's all about having respect for your audience and yourself.
Maternal/paternal rights for athletes
Many employees receive family-friends benefits which include parental leave or childcare. Diageo, for example, is a UK beverage company which recently introduced female employees to be offered a minimum of 26 weeks fully paid maternity leave under a new global policy (Rennie and Beach, 2020). The vast majority of employees, by contrast will receive just the statutory minimum maternity pay.
Maternity rights
Sporting bodies are generally falling behind in creating Family-Friendly policies which is inconsistent with modern attitudes towards athletes' rights. Many British athletes e.g Jessica Ennis-Hill and Jo Pavey are parents, yet have still made a successful return to sport.
UK Sport Guidance states thatif a female athlete becomes pregnant they can continue to receive World Class Programme funding and support during pregnancy and after child birth. She (the mother) and her performance director are expected to agree a new appropriate training and competition programme that would map the athlete's return.
Three months after childbirth, the sports performance director is encouraged to undertake a review with the athlete in order to assess them on her commitment to the agreed plan. By the end of the three months, if the athlete has made the decision that they in fact do not want to return to the sport, then they would be given a notice period depending on the length of time that they had been involved on the World Class Programme before they were then removed from funding (Falkingham, 2020).
Paternity rights
In 2019, the England Cricket team had its biannual tussle with rivals Australia. Batsman, Joe Denly, a new recruit to the England ranks, left the field at the end of the first 5 days of the final Test Match at the Oval in London. The athlete drove 60 miles to be with his wife for the birth of their daughter. The following day, Denly was back on the field facing the Australian bowlers. Joe then went on to create the highest score to date, only narrowly missing out on a Test century (Jackson and Brenner, 2018 and Anderson et al, 2019).
Denly's story is a happier example than the experience of former Manchester United's French star, Anthony Martial. The star was fined £180,000 and shamed publicly in 2018 for missing a week of training after flying to be his wife in order to support her through a difficult labour and welcome their son into the world. Two of the days in which he was away were dedicated to travel alone (Jackson and Brenner, 2018 and Anderson et al, 2019).
Sporting success is valued more than family. The famous one liner,"winners never quit and quitters never win" is one which athletes find so important. So much so that, in the 1990s, the President of Oakland athletics, Billy Bean missed his partner's funeral in order to continue playing a game (Anderson et al, 2019).
These types of incidents sit completely at odds with decent treatment of employees. Organisations are increasing the length of time woman get full maternity pay. A study by the University of Birmingham found that only 9,200 new parents (just over 1% of individuals entitled) shared parental leave in 2017-18. However that rose to 10,700 in the financial year 2018-19. Companies now seem more willing to offer other options to just maternity leave, in the hope of recruiting and retaining high calibre employees (Birkett and Forbes, 2018).
How has Coronavirus has affected sport?
Law in sport is no different to ordinary law in that sporting organisations and sponsors have to respect and obey the rules. This has been particularly highlighted during the current COVID-19 pandemic crisis.
Coronavirus has caused major sports leagues and events around the world to cease current activities or cancel upcoming events due to strict lockdown rules (The Independent, 2020). COVID-19 has forced governing bodies to try to intervene and protect institutions within their area, for example, FIFA (the governing body of football) has set up a £121 million relief fund for its 211 national associations (Keegan, 2020)
The lockdown laws which come as part of the pandemic haven't just affected international bodies but also had an affect domestically. In Football, national leagues such as the Premier League in England have come to a halt until further notice ,whilst some other leagues around Europe declared their seasons over or null and void as they have in Ligue 1 (France) and the Eredivisie (The Netherlands).
The halting of sporting activities isn't the only implication of this crisis: it has had a major impact on the employment of all those involved in sport directly or indirectly.
In the UK, furloughing has been introduced to try and help businesses to pay their employees. The furlough scheme means that the UK Government pays 80% of employees' wages up to a ceiling of £2500 a month (HMRC, 2020).
This causes issues, however, for many professional, sporting institutions, as many athletes are earning far above £2500 a month. Therefore such individuals are ineligible to be furloughed placing sporting institutions under serious financial strain should players refuse to take wage cuts. FC Sion, a football team in Switzerland, were forced to terminate the contracts of 9 footballers after they refused to take pay cuts (BBC, 2020b)
In other instances, the furlough scheme has been supported and it has had the desired effect. The McLaren Formula 1 team main drivers Carlos Sainz and Lando Norris have taken pay cuts in order to support their fellow employees on the team (Galloway, 2020)
Added to this, the UK Health Protection Regulations 2020 have prevented sports such as Formula 1, Football, Boxing or Rugby being performed because of current social distancing restrictions. Whilst this has had a detrimental effect on the sporting world as a whole, it has provided a boost in less traditional fields. E-sports have increased in prominence since the cancellation/postponement of traditional sporting events. Formula 1, in particular, has capitalised on the potential E-sports platform. Formula 1 has been hosting 'virtual' Grand Prixs where a mixture of current drivers, figures in the sport, other sportsmen or celebrities race against each other by using the official Formula 1 video game (Dixon, 2020).
The reaction has been positive as a reported 3.2 million viewers witnessed the inaugural virtual Grand Prix, the stature of many of those involved is testament to its success as prominent figures in world sport such as Thibaut Courtois, Ciro Immobile and Sir Chris Hoy have all competed in the virtual Grand Prix (Dixon, 2020)
The cancellation of major sporting matches and events is causing massive implications financially and logistically. In Rugby there had been suggestions that games in France could be played behind closed doors should the league be started again. Club owners highlighted objections to this, in particular, the owner of 'Stade Toulouse' would potentially lose millions of Euros before the end of the season should games be played behind closed doors (Ultimate Rugby, 2020).
The UK Health Protection Regulations 2020 have caused major financial implications to sporting institutions across the country. Leeds United, a football club competing in the English Championship, is set to miss out on lucrative financial benefits of promotion to the Premier League. Being promoted to the Premier League guarantees Clubs a large sum of prize money worth millions. However, the following season they spend in the premier league promises them close to £100 million even if they finish last place (Winters, 2020). This level of money could help Leeds United recover from its financial deficit. At the time of writing, all games have been postponed for the foreseeable future meaning that there is a lack of certainty as to what happens next.
Logistically on a global scale COVID-19 has caused the disruption of massive global events that take years of organisation to have now been postponed. Although some of the postponements are only estimated to be a year, the cost can still be detrimental. Reports claim that a one year delay of the Olympics could result in £2.3 billion in further costs (Mail online, 2020).
COVID-19 has emphasised key aspects of employment law, even at an elite level in sport there is more protection being employee rather than being a worker or self-employed. Many members of clubs and teams in different sports have agreed pay cuts. However, they are still being paid. This situation isn't the same for professional golf: players are registered as self-employed. Footballers are still being paid or have at least agreed a deferral of wages or a temporary pay cut, but nevertheless, their employment contract still protects them during this time of major uncertainty. Golfing stars such as Rory McIlroy and Tommy Fleetwood do not have this protection unlike football stars such as Harry Kane and Raheem Sterling.
It is clear that UK employment law needs to do more in determining an athlete's employment status. The UK Government must also work harder to protect athletes and their rights. Due to the catastrophic pandemic, not only will sports organisations and clubs suffer but also their athletes. The only certainty in these most uncertain times is that Covid-19 is likely to generate a plethora of future legal disputes which will shape our legal landscape, especially in the world of sport, for some time to come.
Anderson, E., Parry, K.D., & Batten, J., 2019. With women's sport leading the way, male athletes could benefit from family-friendly policies too. Available at: https://scroll.in/field/942000/with-womens-sport-leading-the-way-male-athletes-could-benefit-from-family-friendly-policies-too [Accessed 22 April 2020].
Anderson, E., Parry, K.D., & Batten, J., 2020. Sporting Dads: Male Athletes Need Family-Friendly Policies Too. [online] Available at: https://www.google.co.uk/amp/s/theconversation.com/amp/sporting-dads-maleathletes-need-family-friendly-policies-too-125514 [Accessed 25 April]
BBC Sport. 2020. Should Sports Do More To Help Female Athletes Feel 'More Comfortable' Having Children During Career?. [online] Available at: https://www.google.co.uk/amp/s/www.bbc.co.uk/sport/amp/48336819 [Accessed 25 April]
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Bennett, M., 2019. Sports Law In The United Kingdom | Lexology. [online] Lexology.com. Available at: <https://www.lexology.com/library/detail.aspx?g=7cc100e9-382e-4013-b1a0-8499c6889c0e> [Accessed 22 April 2020].
Birkett, H and Forbes, S (2018). Shared Parental Leave: Why is take up so low and what can be done? (1). Available at: https://www.birmingham.ac.uk/Documents/college-social- sciences/business/research/wirc/spl-policy-brief.pdf [Accessed 22 April 2020].
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Galloway, J., 2020. Carlos Sainz, Lando Norris take pay cuts as some McLaren staff furloughed. [Sky News online] Available at: https://www.skysports.com/f1/news/12433/11967263/carlos-sainz-lando-norris-take-pay-cuts-as-some-mclaren-staff-furloughed [Accessed 22 April 2020].
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McGowan, A., 2019. Varnish Wins Right To Appeal Tribunal. [online] BBC Sport. Available at: <https://www.bbc.co.uk/sport/cycling/50825263> [Accessed 24 April 2020].
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UK Health Protection Regulations 2020
Ultimate Rugby, 2020. Top 14 Owner Claims His Club Will Lose Millions If Games Are Played Behind Closed Doors. [online] Available at: <https://www.ultimaterugby.com/news/top-14-owner-claims-his-club-will-lose-millions-if-games-are-played-behind-closed-doors/625829> [Accessed 22 April 2020].
Winters, M., 2020. The colossal cost of cancellation: Leeds could lose £100m MINIMUM if promotion to Premier League is scrapped while National League leaders Barrow may miss out on £1m if the season is voided… the impact on lower leagues would be devastating [Mail online]. Available at: https://www.dailymail.co.uk/sport/sportsnews/article-8293009/Leeds-United-lose-100m-MINIMUM-promotion-Premier-League-scrapped.html [Accessed 22 April 2020].
Copyright Stephanie Crainey, Ross Codona and Briege Elder, 22 April 2020
Posted on 28th May 2020 5th Jun 2020 Categories Assembly Bill 5 (California Gig Economy Law), Athletes, California Borello Test (1989) for determining employment status, California Dynamex Test (2018) for determining employment status, CJRS UK, Contract, Contract for Services, Contract of Service, Contractual sick pay, Coronavirus, COVID-19, Dismissal, Employment Contracts, Employment Law, Employment Rights Act 1996, Employment status, Equality Act 2010, Furlough, Furloughing Scheme (UK), Gig Economy Workers, Law in sport, Law of Contract, Social media misuse, Sports Law, UncategorizedTags Athletes, Contract for Services, Contract Law, Contract of Service, Contracts of employment, Coronavirus, COVID-19, Dismissal, Employee's rights, Employees, Employment Law, Employment Rights Act 1996, Employment status, Equality Act 2010, Furloughing, Law in Sports, Social media misuse, Sources of employment contracts, Sports Law, UK CJRS, UK Government furloughing scheme, WorkersLeave a comment on The impact of UK Law on sport
Volunteers please!
Photo by ray sangga kusuma on Unsplash
I seem to be on something of a theme these last few weeks where my focus in the previous blog (and in this one) has been on agreements which are not enforceable in court.
In my last blog (Rock, paper, scissors …), I examined the historical, legal position in Scotland in relation to gambling agreements. These types of arrangements were – until the introduction of the Gambling Act 2005 – unenforceable in the Scottish courts on the basis that they fell into a category of agreement which was below the dignity of judicial scrutiny (sponsiones ludicrae).
It was with some interest then that the ongoing Covid-19 crisis should flag up another aspect of the law of contract which addresses situations where certain agreements are deemed to be unenforceable.
I am speaking of agreements where an individual volunteers to provide services, for example, to a charitable or community organisation. This type of arrangement is technically referred to as an agreement binding in honour only.
The well known UK retailer, Boots, has recently been criticised for its use of volunteers during the Covid-19 outbreak and accusations of exploitation have been flying around. The retailer placed advertisements for individuals to come forward to be trained as testers. This was all part of a UK Government initiative to encourage people to volunteer to help out during the crisis.
At first glance, there seems to be nothing wrong with what Boots is doing, but the retailer has been accused of abusing or exploiting the enthusiasm of volunteers to help out. The advertisements stated that individuals must commit to work at least 32 hours per week. This situation begins to sound less like volunteering and more about control. The Trades Union Congress and some employment lawyers have warned that Boots may be opening itself to legal action in the future. You may label an individual as a volunteer, but if you begin to treat him or her as a worker or even an employee, you may find that the relationship is not one of volunteer and recipient. In Scotland, this would an example of the doctrine of personal bar (or estoppel as English colleagues would say) in operation.
A link to the story about Boots as reported in The Independent can be found below:
When we think of volunteers, we do not often think of them as individuals who provide services to commercial companies, but rather charitable and community based organisations. Furthermore, UK National Minimum Wage legislation exempts charities from its provisions – not commercial organisations like Boots.
Genuine volunteers
Such situations arise where the parties (the volunteer and the recipient of services) clearly intend not to be bound by the agreement that they have entered. There is no intention in the minds of the parties to create a legal relationship. The arrangement will last as long as the parties find it convenient. Other side can withdraw from this arrangement at any time without penalty. The party who withdraws from the arrangement may find that their honour or integrity is called into question, but in the absence of legal sanctions, this is a situation that they can probably live with.
There are downsides to being a volunteer: they are not employees within the meaning of Section 230 of the Employment Rights Act 1996 and this means that if such individuals suffer less favourable treatment in the course of their involvement with the recipient, they may have limited legal redress.
Section 83 of the Equality Act 2010 makes it very clear that if a person wishes to pursue an employment related discrimination claim, s/he must be in 'employment under a contract of employment, a contract of apprenticeship or a contract personally to do work'. The wording of Section 83 would, therefore, exclude genuine volunteers because such individuals are providing services to recipients under an agreement binding in honour only.
In X v Mid Sussex Citizens' Advice Bureau (CAB) and Others [2012] UKSC 59, the UK Supreme Court affirmed the earlier decision of the English Court of Appeal in which the claimant ('X') had signed a 'volunteer agreement' to work at the Citizens' Advice Bureau which was 'binding in honour only'. This meant that 'X' did not have a contract of employment or a contract in which to perform services personally. This meant that 'X' was outwith the disability discrimination laws (now contained in the Equality Act 2010) and it was incompetent of her to have brought the claim. The Supreme Court, in a lengthy exposition of the effect of EU Directives, also considered whether there was an obligation placed upon EU member states to outlaw discrimination in relation to volunteers. The Supreme Court concluded that there was no such duty placed upon member states by the EU.
A link to the Supreme Court's judgement can be found below:
Posted on 14th May 2020 4th Jul 2020 Categories Agreements binding in honour only, Contract, Contract for Services, Contract Law, Contract of Service, Coronavirus, COVID-19, Discrimination, Discrimination and equality, Discrimination and equality Law, Doctrine of personal bar in Scotland, Employment Contracts, Employment Law, Employment Rights Act 1996, English Court of Appeal, Equality Act 2010, Equality and discrimination, Estoppel, EU Law, European Union Law, Ludicrous promises, National Minimum Wage, UK Supreme Court, Unenforceable contracts, Volunteers, X v Mid Sussex Citizens' Advice Bureau (CAB) and Others [2012] UKSC 59Tags Agreements binding in honour only, Contract for Services, Contract Law, Contract of Service, Contracts of employment, Coronavirus, COVID-19, Discrimination, Doctrine of personal bar in Scotland, Employment Law, Employment Rights Act 1996, Equality, Equality Act 2010, Estoppel, Sponsiones ludicrae, Unenforceable agreements, Volunteers, X v Mid Sussex Citizens' Advice Bureau (CAB) and Others [2012] UKSC 59Leave a comment on Volunteers please!
Gender recognition reform postponed
The Coronavirus continues to create chaos – legally speaking.
The latest casualty is the Scottish Government's promised review of the Gender Recognition Act 2004. This exercise will now be postponed for the foreseeable future.
On 20 June 2019, the Scottish Government stated that, following a consultation in 2018, it would be bringing forward a Gender Recognition Bill in order to reform the current Gender Recognition Act 2004.
This exercise was always dogged by a lack of clarity on the Government's part. Shirley-Anne Sommerville MSP, the Government Minister who had responsibility for this issue had publicly admitted that there was still a need to build a "maximum consensus" before things become clearer. Code for sorting out divisions over the issue within the ranks of the Scottish National Party.
A link to information about the proposed Bill can be found below:
https://www.gov.scot/publications/review-of-gender-recognition-act-2004/
Since the introduction of the Act, it has long been the case, therefore, that it will amount be unlawful discrimination to treat a person less favourably because s/he has undergone a a process of gender reassignment. The Equality Act 2010, of course, also bolsters legal protection for transgender people.
The Scottish Government's proposed Gender Recognition Bill
The proposed Bill was controversial because some Scottish National Party MSPs and MPs (e.g. Joanna Cherry QC, Ash Denham, Kate Forbes and Lindsay Martin) are concerned about its main objective: that an individual who wishes to undergo gender reassignment will no longer have to provide medical evidence to the Gender Recognition Panel. The Panel currently determines the gender or sex of individuals who wish to undergo reassignment by issuing them with a certificate:
https://www.scottishlegal.com/article/joanna-cherry-qc-signs-letter-opposing-rush-to-reform-gender-law
Under the Scottish Government's proposals, an individual could effectively self-identify as a person of the opposite sex without having to undergo invasive medical procedures and provide the evidence of this fact in order to obtain recognition from the Panel.
Under the proposed legislation, an individual wishing to undergo gender reassignment would have to have met the following criteria:
Two academics at the University of Edinburgh, Dr Kath Murray and Lucy Hunter Blackburn have also been extremely critical about the Scottish Government's approach to transgender rights generally.
A link to an article in The Holyrood Magazine discussing the research conducted by the two academics can be found below:
https://www.holyrood.com/articles/news/scottish-trans-policy-detrimental-women-and-girls
For the time being all of the above is going to be purely academic.
https://seancrossansscotslaw.com/2019/07/17/whos-the-daddy/
https://seancrossansscotslaw.com/2019/09/26/im-not-your-daddy/
https://seancrossansscotslaw.com/2019/06/25/gender-neutral/
https://seancrossansscotslaw.com/2020/02/18/safe-spaces/
https://seancrossansscotslaw.com/2019/12/21/say-what-you-want/
https://seancrossansscotslaw.com/2020/02/16/say-what-you-want-continued/
Posted on 1st Apr 2020 2nd Apr 2020 Categories Coronavirus, COVID-19, Discrimination, Discrimination and equality, Discrimination and equality Law, Equality Act 2010, Equality and discrimination, Gender reassignment, Gender Recognition Act 2004, Protected characteristic, Protected characteristics, Scottish Government, Scottish Parliament, Scottish Parliament Bills, Self-identification for gender recognition purposes, Transgender discriminationTags Coronavirus, COVID-19, Discrimination, Equality Act 2010, Gender reassignment, Gender Recognition Act 2004, Gender self-identification, Scottish legislation, Scottish Parliament, Scottish Parliament BillsLeave a comment on Gender recognition reform postponed
What a difference a day makes …
Photo by Jim Wilson on Unsplash
Only yesterday, I was discussing provisions of the Coronavirus (Scotland) Bill which would have led to the suspension of trial by jury for indictable offences in Scotland.
It seems that the Scottish Government has had second thoughts about this issue and has decided not to proceed with these proposals – although Humza Yousaf MSP, Cabinet Secretary for Justice has said that the Government will revisit the matter sometime in the next month.
This is the essential problem with emergency legislation – the unexpected consequences which arise in such situations due to the fact that there is a lack of effective oversight or supervision.
Were the Government's proposals a sinister attempt to undermine trial by jury or were they simply a necessary evil determined by social distancing requirements during the COVID-19 crisis?
Whatever reason you prefer, the Scottish Government has found itself at the centre of a backlash from the usual suspects – the Scottish Criminal Bar Association – and from its own supporters e.g. Joanna Cherry QC MP (see below):
This has led to a situation which no Government (irrespective of its political colours) likes to be in: having to make an embarrassing U-turn.
In normal times, of course, the Government would have circulated its proposals in a discussion paper well in advance of any draft legislation being published. In this way, various interested parties, such as the Faculty of Advocates and the Law Society of Scotland, could have made their views known and, for the Government, this allows a useful measurement of the temperature to be taken.
The Law Society of Scotland, which represents solicitors, bemoaned the lack of consultation by the Scottish Government (see below):
This is why emergency legislation should always contain a clause or a provision which allows it to be regularly reviewed by Parliament. In this way, very simple questions can be posed:
Is the law working properly?
Is it still necessary?
Please find below a link to the story about this development on the BBC website:
www.bbc.co.uk/news/uk-scotland-scotland-politics-52111412
https://seancrossansscotslaw.com/2020/03/31/trial-without-jury/
https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu
https://seancrossansscotslaw.com/2019/02/25/the-jury/
Posted on 1st Apr 2020 1st Apr 2020 Categories Bills of the Scottish Parliament, COVID-19, Crime, Crime and punishment, Criminal Law, Criminal prosecutions, High Court of Justiciary, Scottish legislation, Scottish Parliament, Scottish Parliament Bills, Scottish Parliament legislation, Scottish Parliament post legislative scrutiny, Sheriff Court, Solemn criminal trials, Solemn trial Sheriff Court, Solemn trials, Summary trials, Trial by jury, Trial on indictment, Trials on indictmentTags Abolition of right to trial by jury, Coronavirus, Coronavirus (Scotland) Bill, COVID-19, Criminal Law, Devolution, Emergency legislation, High Court of Justiciary, Scottish Criminal Justice, Scottish Criminal Law, Scottish legislative scrutiny, Scottish Parliament, Scottish Parliament Bills, Trial by jury, Trial on indictmentLeave a comment on What a difference a day makes …
Right to refuse?
Thanks to @beamomatic9000 for making this photo available freely on @unsplash 🎁
The COVID-19 crisis continues to throw up some interesting legal questions e.g. employment rights, EU freedom of movement rights, frustration of contract etc.
One area which seems somewhat overlooked is in relation to the actions of many retailers – principally supermarkets and grocery stores – which have been restricting sales of particular items. The items in question include soap, hand gel and sanitiser, bleach, anti-septic wipes, paper towels and even toilet rolls.
The COVID-19 situation has led to panic buying of these essential hygiene items and supermarkets have imposed clear limits on their sale.
Can supermarkets and other retailers impose these sorts of restrictions?
This, of course, takes us back to the basic rules governing the formation of a contract. Retailers are especially guilty when applying the term 'offer' to the goods which they stock. It is no such thing: goods on the shelves; on display; or in shop windows are invitations to treat. It is the the customer who is being invited to make the offer (see Fisher v Bell [1961] 3 ALL ER 731 where the English Court of Appeal ruled that a knife displayed in a shop window was not being offered for sale, it was merely an invitation to treat. Lord Parker, the Chief Justice being particularly emphatic on this point).
In the seminal case of Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953] 1 QB 401, the judges of the English Court of Appeal helpfully distinguished between an offer and an invitation to treat. The case arose as a result of a provision in the Pharmacy and Poisons Act 1933 which stipulated that the sale of certain medicines must take place in the presence of a registered pharmacist.
Boots Chemists operated a self service system whereby it's customers were able to place the medicines which they wished to purchase in their shopping baskets. The key question was whether Boots was breaking the law by allowing customers to do this. In other words, was the sale completed when the customer placed the medicines in their baskets? Now, if goods on shelves were to be regarded as 'offers', Boots would indeed be breaking the law because customers would be deemed to be 'accepting' these 'offers' by placing the goods in question in their baskets.
If, on the other hand, the sale was concluded elsewhere i.e. at the cash register where there was always a registered pharmacist on duty, Boots would be fully complying with the Act.
The Court of Appeal concluded that it was the customer who made the offer by presenting the goods at the cash register. The sales assistant (properly supervised by the pharmacist) could conclude matters i.e. accept the offer by ringing the sale up on the cash register. Furthermore, it was always open to the assistant to refuse the customer's offer. Goods on shelves were, therefore, merely an invitation to treat.
In more normal times, a customer's offer would and should be refused by retailers because they are an underage person who is attempting to purchase e.g. alcohol, cigarettes or video games or DVDs which are age specific.
So, in this way, retailers are generally within their rights to impose strict limits on the numbers of certain items that customers wish to purchase. The customer can offer to buy 20 bottles of hand gel or sanitiser, but the store will have the right to refuse.
Presently, retailers are putting these sorts of restrictions into place in order to protect and promote public health by giving as many customers, as possible, reasonable access to basic hygiene products. If we co-opt the language of the Equality Act 2010, retailers are putting restrictions in place because these are a proportionate means of achieving a legitimate aim. So, hopefully, such restrictions – if fairly implemented and monitored – will not be subject to a legal challenge on grounds of discrimination.
https://seancrossansscotslaw.com/2019/12/06/tis-the-season-of-special-offers/
https://seancrossansscotslaw.com/2019/03/27/special-offers/
https://seancrossansscotslaw.com/2019/03/14/too-good-to-be-true/
Posted on 26th Mar 2020 27th Mar 2020 Categories Contract Law, Coronavirus, COVID-19, Discrimination and equality Law, Equality Act 2010, Equality and discrimination, Fisher v Bell [1961], Invitation to treat, Law of Contract, Objective justification for discrimination, Offer and acceptance, Offers and invitations to treat, Pharamceutical Society of Great Britain v Boots Cash Chemists [1953], Sale of goodsTags Consumer law, Contract Law, Coronavirus, COVID-19, Discrimination, Equality Act 2010, Fisher v Bell [1961], Frustration, Inequality, Invitations to treat, Offer and acceptance, Offers and invitations to treat, Pharmaceutical Society of Great Britain v Boots Cash Chemists [1953]Leave a comment on Right to refuse?