New Telecommunications Code

Digital framework is crucially important to UK citizens and the Government is seeking to propose new legislation to facilitate wide reaching coverage, improved connectedness and speedier services.

What many people do not know is that at the moment the vast telecoms network is governed by an Electronic Communications Code enacted in 1984. Given the fact that the first handheld cellphone was sold in the USA on 13 March 1984, apparently weighing 28 ounces and nicknamed “The Brick”   it is clear that the existing code has been long outstripped by technology itself.

In the Queen’s speech delivered on 18 May 2016 the Government’s intentions in this regard were set out. The Queen states:

“Measures will be brought forward to create the right for every household to access high speed broadband. Legislation will be introduced to improve Britain’s competitiveness and make the United Kingdom a world leader in the digital economy.”

The Code is in desperate need of reform due to its being outdated, complex and difficult to apply. It was famously described judicially as “one of the least coherent and thought-through pieces of legislation on the statue book.” The real problem for landlords in the past has been in recovering land from an operator and the resolution of disputes between operators and the owners of the various sites on which their telecoms equipment is placed.

The Government has now published a proposed amendment to the current Infrastructure Bill, recommending the incorporation of an entirely new Electronic Communications Code. This new Code is a complete re-write of the existing code with the aim that the new code will be clear in both its drafting and application.

The key provisions under the new code fall under the following headings. :

  • Conferral of code rights and their exercise
  • Sharing upgrading and assignment of code rights
  • Termination of agreements
  • Removal of apparatus
  • Compensation under the code.
  • Dispute resolution
  • Code of practice/standard terms
  • Impact on existing agreements.

The suggestions for a new Electronic Communications Code reveal that the Government acknowledges the competing interests of land owners and the general public; the interest of the land owners  specifically relating to the value of their property investments and the interest of the general public being  the desire to access a state of the art electronic  communications service.  The new emphasis is in favour of provisions of services and is likely to cause significant concern within the commercial property sector.

If you wish to discuss any issues in relation to the proposed amendments please contact Ross Leatham on 0141 552 3422 or by email on rjl@mitchells-roberton.co.uk

4.6% Increase in Average House Prices In Scotland

The latest publication of the UK House Price Index (UK HPI) reveals the following interesting information relating to the Scottish property market:

  • The average house price of a property in Scotland in June 2016 was £143,282 an increase of 4.6% on the previous year and an increase of 2.7% when compared to the previous month.
  • The biggest price increase over the last year was in the City of Edinburgh where the average price increased by 11.7% to £240,978.
  • The biggest price decrease was in the City of Aberdeen where prices fell by 6.8% to £178,069
  • All types of property showed an increase in average price when compared with the previous year, with detached properties showing the biggest increase of 6.2% to £246,291
  • The average price for a new build property in June 2016 was £182,481, an increase of 3% on the previous year
  • The average price for a property purchased by a first time buyer was £115,877 an increase of 3.7% on the previous year

The Registers of Scotland’s director of commercial services, Kenny Crawford said “The volume of residential sales in Scotland in April was 6665 , a decrease of 16% on the previous year. This also compares with relatively high volumes of 11,017 in March 2016. The decrease in April 2016 was anticipated following the high volumes in the preceding month.”

Changes in the Land and Buildings Transaction Tax that came in to effect on 1 April 2016 for additional dwelling houses such as second homes and buy to let properties are highly likely to have contributed to the increase in March and decrease of volume in April.

If we can help you with any property matters please do not hesitate to contact Alison Gourley Associate on 0141 552 3422 or by email on ajg@mitchells-roberton.co.uk

Hijabs in the Workplace

The case of Achbita v G4S Secure Solutions NV is a Belgian case concerning a Muslim woman, working as a receptionist, who was dismissed for refusing to remove her headscarf whilst at work. She claimed unfair dismissal and discrimination on the grounds of religion or belief. The Belgian Court of Cassation, before whom her wrongful dismissal appeal is pending, has asked the European Court of Justice (ECJ) for a determination. The Court is tasked with deciding whether a rule forbidding all staff from wearing any visible political, religious or philosophical symbols could lead to direct discrimination against Muslims who wish to wear a headscarf at work. This is the first case of discrimination on the grounds of religion or belief which has reached the ECJ and it has therefore been widely reported.

The Advocate General (AG) has, however, provided an opinion ahead of the ruling of the ECJ. In basic terms the AG submitted that the prevention of wearing a headscarf where the employer’s rule prohibits all employees from having on show any outward signs of political, philosophical or religious belief will not constitute direct discrimination under the EU Employment Equality Directive. The AG then goes on to declare that the ban, nevertheless,  may constitute indirect religious discrimination although it may be justified  to enforce a legitimate policy of religious and ideological  neutrality pursued by the employer as long  as the proportionality test is observed. That means that consideration must be given to the size and conspicuousness of the religious symbol, the nature of the employee’s activity, the context in which she performed her duty and the national identity of the Member State.

A different AG has now given a contrasting opinion in a similar case, Bougnaoui v Micropole SA. In this case the employee had been told when she was recruited that she would not be able to wear her headscarf at all times due to the customer facing nature of her role. Following a site visit to a customer, the customer complained about her wearing a headscarf and asked that she did not do so in the future. When this was raised with her she refused and was dismissed. She was unsuccessful in the French Courts and her case was referred to the ECJ. In this case the AG found that Ms Bougnaoui’s dismissal was linked to the rule prohibiting the wearing of religious signs. On this basis she was treated less favourably than other employees in a comparable situation as another employee not wearing anything in manifestation of his or her religion would not have been dismissed.

Employers must remember that individuals have the right to manifest their religious beliefs under the European Convention of Human Rights. An interference with this right was demonstrated by Eweida and others v United Kingdom where the UK was held to have failed to protect Ms Eweida’s right to wear a discreet cross outside her uniform. This failure did not extend to Mrs Chaplin, a nurse who wished to wear a crucifix at work, on the basis that her employer’s restrictions were in place to protect the health and safety of nurses and patients and so were not disproportionate.

In the Bougnaoui case the AG stated  that for the dismissal to be lawful the policy would have to amount to a “genuine and determining occupational requirement.”  The AG found that the requirement for Ms Bougnaoui to remove her headscarf was not a “genuine and determining occupational requirement” that was justified. The AG noted  that Micropole SA were relying on commercial interests and the wishes of a client to justify discrimination but direct discrimination cannot be justified on the grounds of financial loss.

The decision poses interesting questions given its divergence from the opinion given in Achbita where the AG found that a blanket ban on all religious and philosophical symbols could be objectively justified with reference to the business’ interests and customer facing nature of the business.   The AG in the Bougnaoui case disagrees noting that “it would be entirely wrong to suppose that whereas one’s sex and skin colour accompany one everywhere, somehow one’s religion does not.”

The ECJ is still to give its judgement in both cases later this year. Hopefully the decision of the ECJ will provide some clarity.

If you have an employment law query Hugh Grant our employment law specialist is here to help. Please contact him on 0141-552-3422 or by email hjg@mitchells-roberton.co.uk

A Bid to Scrap Offensive Behaviour at Football Act is Launched

A Labour MSP has officially lodged proposals to scrap the Offensive Behaviour at Football and Threatening Communications Act 2012 (OFBA). James Kelly, a Labour MSP, said the “illiberal” law was flawed on several levels and had “damaged trust between police and football fans”. He further stated that it “needlessly criminalised football fans and has done nothing to tackle sectarianism”. Under the legislation those found guilty could face up to five years imprisonment.

The Act was introduced in 2012 in an attempt to crack down on sectarianism and other football related offences but all four of Holywood’s opposition parties pledged to repeal the act in their election manifestos.

The Conservatives’ Justice Spokesman, Douglas Ross said he was “keen to work with all parties to get rid of this ridiculous legislation” while his opposite number in the Liberal Democrats, Liam McArthur said “ The law has been criticised by everyone from fans on the terrace to senior judges. The majority of the legal profession were opposed to the act when it was first introduced. Knee-jerk reactions to serious social problems rarely deliver the sort of change we need and that is what we have seen with the OFBA.” “It is time that this law was sent for an early bath.”

However, an SNP spokeswoman said “The act sends out a clear message that Scotland will not tolerate hate crime-and it gives prosecutors an additional tool to tackle this behaviour.”

A report published earlier this year revealed that there were only 79 convictions in 2014/15 under the legislation compared with 15,580 convictions for breach of the peace. There have been in total 231 convictions since the law has been enacted and even the government admitted conviction rates were “very small”.

James Kelly argues “Sectarianism in Scotland has existed for hundreds of years but the government’s approach was to try to fix it in 90 minutes.”  “Now that the SNP have lost their majority in the Scottish Parliament we can scrap the Football Act and get real about tackling sectarianism off the pitch, in our classrooms and communities.”

Posted by Marcus Downie who is starting his traineeship with us in September.

Staff Development at Mitchells Roberton

Mitchells Roberton are proud of their nurturing approach towards their staff and I feel privileged to play a part in this.  Keri Russell joined the firm straight from school when she was 17 and began working as my legal secretary in 2005, having spent her first while here as a general office assistant. When Keri was working for me I helped her understand the ins and outs of purchase and sale transactions and the legal language involved. Keri was encouraged by the firm to progress her career in law and began studying at Strathclyde University where I am delighted to say she obtained her qualification as a residential conveyancing paralegal in 2009. Frances Clark, Diane Coats, Patricia McGuigan and Michelle Sloan similarly were supported and motivated by the firm to take up studies  at Strathclyde University to attain qualifications as paralegals in civil court work and private client work.

The encouragement of staff to reach their higher potential is a constant within the firm and I am pleased to say that again three of our young office staff have recently embarked on courses at  Strathclyde University to achieve paralegal qualifications. Sarah Ramage, who is my secretary at the moment, has started studying a residential conveyancing paralegal course. She has completed her fourth assignment and her enthusiasm is catching although her future promotion will leave me without a secretary again!  As Sarah says “I am delighted to have been given this opportunity by Mitchells Roberton . I did not want to go to college after school as I was unsure what I wanted to do. Starting off with general office duties in a legal office gave me the idea that I would like to become involved  in property law so when the firm suggested that they help me through a residential conveyancing paralegal qualification I didn’t have to think twice before jumping at the chance. So far I am really enjoying it and am glad to say I am doing pretty well and want to keep that up.” Rachel McLean is also studying for the same qualification as Sarah. She has submitted her first two assignments and received excellent marks. She too very much welcomed the chance the firm offered. Emma McCutcheon has started a course to become a paralegal in private client work. Emma has said “I am loving this course. I study most evenings for an hour or so after 5 o’clock and a bit at the weekend. I recently handed in my first assignment and was astonished to get 100% and I have now submitted my second assignment. Fingers crossed  I get a good mark.”

We all wish Sarah, Rachel and Emma the best of luck with their studies and look forward to attending their graduations next year.

Had an accident? We are here to help

Accidents are unavoidable in this day and age. When you are injured as a result of the negligent actions of another person or organisation, you may have a claim for loss, injury and harm suffered as a result.

At Mitchells Roberton, we have access to specialist solicitors who can assist you with your claim for compensation on a risk free, “no win-no fee” funding basis.

Personal injury law covers a wide range of scenarios, including:

  • road traffic accidents
  • accidents at work
  • slips, trips and falls
  • clinical negligence
  • product liability
  • accidents abroad

By contacting us promptly, you can aid your case by allowing us to ingather relevant evidence and provide sufficient time to investigate matters on your behalf. Please get in touch for more information on 0141 552 3422 or email pdn@mitchells-roberton.co.uk.

Mitchells Roberton are proud members of The Compensate Personal Injury Network. To find out more about please visit the CPIN website.

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Licence Holders Take Heed

In summer, Glasgow embraces an outdoor cafe and bar culture which would have been unheard of 15 years ago. But behind this scene of conviviality, it is essential that all licence holders understand their responsibilities and have the correct policies and procedures in place to comply with complex licensing law. Failure to do so can have serious consequences for their businesses.

The Scottish Government is responsible for regulating the powers of Scottish Local Authorities and Licensing Boards in relation to licensing the sale of alcohol. The main legislation which controls the sale of alcohol is the Licensing (Scotland) Act 2005.

This Act balances the rights of the majority of people who drink responsibly against the need to protect local communities from nuisance and crime associated with the misuse of alcohol. It is intended to provide a clear and consistent underpinning for the alcohol licensing regime in Scotland based on five objectives:

  • preventing crime and disorder
  • securing public safety
  • preventing public nuisance
  • promoting and improving public health
  • protecting children from harm

In 2010 two further Acts were passed: the Alcohol etc (Scotland) Act 2010 and the Criminal Justice and Licensing (Scotland) Act 2010. Also, because public drinking can severely hamper the quality of life for residents in a particular area, local authorities can pass byelaws to ban drinking in designated public places.

There are a myriad of requirements that all licence holders must meet. Here are the main ones:

  • Within 28 days, the Licensing Board must be notified of certain changes to the licence holding company such as a change of name or address and the appointment or resignation of any directors.
  • Each licensed premise must have a Designated Premises Manager named on the licence without which alcohol cannot be sold.
  • The Licensing Board has to grant permission to any changes in the business, such as a change in layout of the premises or the introduction of live music. A licence holder exceeding the remit of their premises licence is committing a criminal offence punishable by a fine of £20,000 or up to six months in prison or both.
  • A certified copy of the Premises Licence must be on display along with Schedule 3 and Section 110 Notices stating you must be 18 years of age to buy alcohol and that it is illegal to purchase alcohol for someone under the age of 18.
  • Staff should be made aware of all their responsibilities under the licensing legislation. For example, each Personal Licence Holder must tell the Licensing Board of any change in their name or address and any convictions they have. They must also complete the appropriate training including a refresher course and notify the Licensing Board of this.

If we can help with any licensing issues you may have please contact Paul Neilly on 0141 552 3422 or by email on pdn@mitchells-roberton.co.uk