About Paul Neilly

Paul’s first degree was a BA Honours in Financial Services following which he spent five years working for a large insurance company as a pensions specialist. He then completed his law degree at the University of Strathclyde and Diploma in Legal Practice at the Glasgow Graduate School of Law. Paul subsequently joined Mitchells Roberton as a trainee in July 2006 and qualified as a solicitor in September 2008. Principally concerned with civil litigation, Paul specialises in contract disputes, landlord and tenant issues (commercial and residential), debt recovery, family law, employment law and personal injury claims. He also handles cases involving Adults with Incapacity. Paul regularly appears in the Sheriff Courts throughout Scotland and has experience of appearing before Licensing Boards and instructing matters in the Court of Session. Being a general civil litigator Paul is keenly aware of the need to keep step with developments in the law and legal education. This led Paul to join the committee of TANQ, the Trainee and Newly Qualified Society of the Royal Faculty of Procurators in Glasgow, in which role Paul currently organises seminars and networking events for its members. Paul is married with a young son and daughter. In his spare time he enjoys cooking, reading and watching sport, particularly following the exploits of the national football and rugby teams, although this is more of a vocation than a source of enjoyment.

Wheelchair v Buggy

Bus drivers must pressure passengers to make room for wheelchair users.

Wheelchair user Doug Paulley was refused entry to a FirstGroup bus in 2012 when a mother with a pushchair refused to move from the wheelchair space when asked, claiming that the pushchair could not be folded. Mr Paulley was left at the bus stop. He argued that FirstGroup’s “requesting not requiring policy” was discriminatory.

On 18 January 2017, the Supreme Court found that FirstGroup did not discriminate against Mr Paulley. However, they did rule that drivers must do more to accommodate wheelchair users by considering different ways to persuade non-wheelchair users to vacate the space, without making it a legal duty to move them.

Lord Neuberger, the Supreme Court president, said that if a non-wheelchair user unreasonably refuses the driver’s request to move , the driver should consider further action to pressure the non- wheelchair user to vacate the space, depending on the circumstances.

FirstGroup said the ruling meant drivers would not have to remove customers from their vehicles while Mr Paulley said the decision would make a “major difference.”

Penny Mordaunt, the Minister for Disabled People, Work and Health, will discuss with the Department for Transport “clarity, good practice and the transport providers to ensure this ruling becomes a reality.”

The Equality and Human Rights Commission described the Supreme Court ruling as “a victory for disabled people’s rights” and “a hugely important decision”. Chairman, David Isaac, said “Public transport is essential for disabled people to live independently, yet bus companies have not made it easy for this to happen.”

“For years, wheelchair users have been deterred from using vital public transport links because they could not be sure they will be able to get on.“

But it does seem that the driver has to decide whether the person being asked to move is being unreasonable in their refusal. If so, the drive must tell them they are required to move and if necessary refuse to move the bus until they shift.

Chris Fry, Mr Paulley’s solicitor said the ruling had fallen short. “The judgement should have gone further – there’s no right as things stand to force someone off a bus. So it goes as far as that, but not that far as yet.”

As one wheelchair user on BBC Two’s Victoria Derbyshire Programme said “It’s kind of back to square one.”

If you have any questions or if we can help in any way then please contact Paul Neilly on 0141 552 3422 or by email pdn@mitchells-roberton.co.uk

A Judge’s strongly worded advice for separated parents

A senior family law judge, Lord Brailsford recently decided a child contact case concerning a nine year old boy, which had been going on for some seven years.

The father in this case is from Tunisia, but has lived in Scotland for more than ten years and is settled here with a steady job. The mother, who is Scottish, met him in Edinburgh in 2004 and they were married in Tunisia in 2006. Their son was born in 2007. The couple separated in 2008 and divorced in 2013. The boy’s Dad had not seen him for about 3 years when Lord Brailsford made his decision. The boy’s Mum had insisted that contact wasn’t in her son’s best interest and the boy was adamant that he did not want to see his father.

The mother was scared that the boy’s father planned to abduct the child and take him to Tunisia, from where it would be very hard to bring him back to Scotland.  Lord Brailsford in connection with the mother’s views concluded that her “expression of fear of abduction of her son is genuinely held. I do, however, go further and express the view that even if that belief is genuinely held there is no objective or rational basis for it at the present time.” He then set out various protective measures such as passport surrender and Port Alert Orders which could prevent any such abduction.

Lord Brailsford considered statements by the child in the past that he did not want to see his father but he also took into account expert evidence of a child psychologist Professor Tommy MacKay who told the court that he believed the boy’s views about contact with his father to be genuine “but they are not independently formed views.”  He stated that “The child had clear knowledge of his mother’s negative views towards his father.” The psychologist understood that the child would be extremely concerned that any acceptance of his father by him would cause upset to his mother and this would be something that he would be anxious to avoid doing.

Professor MacKay further cited evidence that children “who do not have contact with both parents have, as a group , a greater propensity to experience difficulties academically, psychologically, emotionally and in future relationships in later life”.

Lord Brailsford clearly placed some weight on this evidence saying “I would be reluctant to impose direct contact upon a child who did not wish it but for the overriding requirement to have regard to his best interests which must in my opinion, include his psycho-social development. I have to weigh the potential for adverse effects in later life against a child’s currently expressed opinion against contact.”

Lord Brailsford decided that it was in the best interests of the boy for direct contact with his father to be re-established. He carefully considered a plan and made an order for contact by Skype or similar first of all, for three or four sessions after that and then some supervised face to face contact to take place fortnightly for around three months and he urged both parents to put the past conflict behind them in the greater interest of the child’s welfare. If all that was successful then the Dad could go back to having regular unsupervised contact.

Lord Brailsford also commented that what was causing the child stress was that “he felt the need to please his mother and did this by expressing views which were hostile to his father and to contact with his father. This is a very serious matter which has the potential both to cause harm to the child and to affect the chance of future contact operating successfully. It is regretfully, in my experience, a not uncommon feature of contact disputes, particularly those of an intractable nature.”

Lord Braillsford gave this advice to separated parents “In my opinion the best and possibly the only, way to address this lies in the hands of the parents. They have in my opinion an overriding duty to put aside their antipathy, distrust or resentment held towards a former spouse in order to ensure that their child is not exposed to the sort of risks identified by Professor MacKay in his evidence.”

This is strongly worded advice and separated parents should take it on board.

If you would like more information or advice about the issues raised in this case or about contact arrangements generally please get in touch with our family law team who will provide you with a guiding hand to help you best protect the welfare of your children.

LET IT

LET IT – be known that letting agents can be sanctioned for failing to comply with Tenancy Deposit Scheme rules.

For the first time, a letting agent, rather than a landlord, has been penalised since the introduction of regulations imposing an obligation on a landlord to secure deposits even if that landlord has appointed a letting agent.

Largs-based agents, Colvin Houston, were fined for £750 (reduced to £500 for an early guilty plea) for failing to secure two tenancy deposits on behalf of landlord clients totalling £925.

Trading Standards had received a complaint from a landlord who argued that the letting agent had engaged in an “unfair commercial practice” in terms of the Unfair Trading Regulations 2008. Under the 2008 regulations, a commercial practice is considered “unfair” if it fails to meet the special standard of skill and care to be expected in the trader’s field of activity.

Trading Standards successfully argued that paying a deposit into an approved scheme is the standard of care reasonably expected of a letting agent and failure to do so is an offence under consumer law.

Colvin Houston tried to argue that the landlords in question were not consumers but commercial landlords. This was not accepted by the court and a fine was levied.

If you are a letting agent and would like advice on your obligations please contact Paul Neilly on 0141 552 3422 or pdn@mitchells-roberton.co.uk

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

Tougher Rules on employing illegal workers under Immigration Act

The Immigration Act 2016 came into force on 12 July 2016. Immigration minister James Brokenshire said:

“Some employers seem to think that by employing workers who are less likely to complain, including vulnerable migrants, they can undercut the local labour market and mistreat them with impunity…. The unscrupulous need to know that breaking the law is a high-risk activity and the full force of the state will be applied to them.”

The Immigration Act 2016 makes a number of changes to address the criminal offence of employing illegal workers and to tackle the exploitation of low-skilled migrant workers. Illegal workers are defined as individuals that do not have leave to enter or remain in the UK, or are in breach of a condition preventing them from working.

UK employers already have to carry out immigration checks before employees start employment.  Previously, employers would have breached their duties by “knowingly” employing an illegal worker. Under the new Act, employers will commit are in breach if they employ someone they have “reasonable cause to believe” is disqualified from employment because of their immigration status. A Government Factsheet on the new legislation says:

“By making the test more objective we are making it easier to prove the offence.”

Employers must now undertake three checks in order to comply with the law:

  1. Obtain the employee’s original documents as prescribed in the Home Office Guidance.
  2. Check, in the presence of the employee, that the documents are original and valid.
  3. Copy and keep the documents securely and record the date of the check and date for follow up checks.

To avoid discrimination claims, employers should carry out right to work checks on all prospective employees, not just those who appear to be of non-British descent.

The Act also introduces increased scrutiny and tougher potential sanctions for employers:

  • The maximum custodial sentence on indictment has been increased from 2 to 5 years
  • A maximum financial penalty of £20,000
  • A visa levy (immigration skills charge) on employers that use foreign labour.
  • A new power is introduced to close premises for up to 48 hours where a business employs illegal migrants. If the employer cannot prove they carried out appropriate checks then the business could be placed under special compliance requirements, including a period of continued closure.
  • A new Director of Labour Market Enforcement will oversee public bodies which enforce the different minimum standards for workers, including HMRC.

While the Immigration Act 2016 is now law, the majority of new measures will take effect only once further regulations are made. If you have any questions or if we can help in any way then please contact Paul Neilly on 0141 552 3422 or by email pdn@mitchells-roberton.co.uk

Employment Law 2016 – Key Financial Uplifts

  1. Introduction of the National Living Wage – from 1 April 2016, the National Living Wage took effect in the UK. All workers aged 25 and over are entitled to be paid a minimum of £7.20 per hour.

 

  1. National Minimum Wage Rates – from 1 October 2016, the apprentice rate will rise to £3.40, the minimum hourly rate for 16-17 year olds will increase to £4.00, 18-20 year olds will be entitled to a minimum of £5.66 and 21 -24 year olds must be paid at least £6.95 per hour. Penalties for employers failing to pay the above rates doubled from 1 April 2016 to 200% of arrears, subject to a maximum of £20,000 per worker.

 

  1. Unfair Dismissal Awards – from 6 April 2016, in unfair dismissal claims the maximum Compensatory Award has increased from £78,335 to £78,692. The Basic Award, which applies in addition, has increased from £14,250 to £14,370.

 

  1. Redundancy Pay – from 6 April 2016, the maximum amount of statutory redundancy pay has been increased from £14,250 to £14,370. The weekly figure at which pay is capped for calculating redundancy payments has increased from £475 to £479.

 

  1. Statutory Sick Pay – from 6 April 2016, the standard rate of statutory sick pay is £88.45 per week.

 

  1. Statutory Maternity, Paternity and Adoption Pay – from 6 April 2016, the standard rate of statutory maternity, paternity and adoption pay is £139.58 per week.

 

If you would like to discuss any employment law matter, please contact Hugh Grant (hjg@mitchells-roberton.co.uk) or Paul Neilly (pdn@mitchells-roberton.co.uk) or telephone 0141 552 3422.

Middle Aged Need Not Apply

In the last year, the Equality and Human Rights Commission (EHRC) has received over 100 complaints about discriminatory advertisements including:

  • Age discrimination – a recruitment agency advert stated that over 45s need not apply
  • Disability discrimination – a hotel said it would not offer accommodation to disabled people
  • Sexual orientation – another hotel said that it wouldn’t allow same sex couples to stay in a room together
  • Sex discrimination – a bar advertised for a “part-time shot girl”

Discriminatory advertising is often overlooked in the area of discrimination law yet the EHCR has warned that thousands of people could be at risk of being denied jobs each year due to unlawful advertising.

The Equality Act 2010 prohibits employers from discriminating on any of the nine protected grounds, such as age, disability or gender reassignment, when deciding who to offer employment.

Some principal recommendations in the EHRC’s good guidance practice are:

  • When recruiting, include an equal opportunity statement to make it clear that applicants are welcome from all suitably qualified or experienced people.
  • Avoid words implying a restriction on those who may apply such as “young”, “physically active” or “cameraman.”
  • If there is a real occupational requirement for an applicant to have a protected characteristic, for example for a female to work in a women’s refuge, this must be objectively justifiable.

Employers can face two potential actions if they place a discriminatory advert. A tribunal may award monetary damages to an unsuccessful applicant or a person who is genuinely deterred from applying and / or enforcement action may be taken by the EHRC even if no one has actually complained.

If you would like to discuss the wording of any advertisement for a new employee, the issue of a particular occupational requirement or indeed any employment matter, please contact Hugh Grant (hjg@mitchells-roberton.co.uk) or Paul Neilly (pdn@mitchells-roberton.co.uk) or telephone 0141 552 3422.