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.

GDPR – How Will it Affect my Business?

All businesses have paper and/or digital records of data relating to their customers and employees: names, addresses, emails and other personal information.

On 25 May 2018, the General Data Protection Regulation (GDPR) becomes law. The GDPR sets new standards for data protection and its enforcement. It restates what is meant by data and how that data should be collected, managed, stored and secured.

While GDPR consolidates existing data protection principles, it significantly strengthens the rights of individuals (data subjects) in relation to data held about them including how they can access, rectify and have that data erased (“the right to be forgotten”).

A key decision for any business planning for GDPR will be to identify the lawful basis upon which they are going to process personal data. Much of the hype surrounding GDPR relates to “consent” which we will turn to shortly. However, consent is just one of a number of lawful grounds for which GDPR permits the processing of data. Other legitimate grounds are:

  • Contract – for performance of a contract with a data subject or to take steps to enter into a contract
  • Compliance – for compliance with legal obligations
  • Vital interests e.g. where necessary to protect a person’s interests or life
  • Public task – for the protection of public interests or in the exercise of official authority
  • Legitimate interests – to fulfil the legitimate interests of the data controller except where those are overridden by the interests of the data subject

Except for direct or indirect marketing then, the received wisdom is that consent should only be used as a condition for processing personal data where none of the other above grounds apply.

Consent already exists as a concept under the current data protection regime and GDPR actually makes it more difficult to obtain consent to the processing of data. Whereas organisations already need to obtain consent before sending marketing communications (e.g. the pre-ticked box), GDPR requires that consent is be freely given, specific, informed, properly documented and easy for people to withdraw. The use of pre-ticked, opt-out boxes will no longer be permitted as a method of obtaining consent to receive marketing material.

Even where a lawful basis for processing has been identified, you still need to audit the information held to ensure its accuracy. Internal procedures should be reviewed to ensure that there are the correct resources to manage and protect the information on a continuing basis. There should also be a very clear privacy policy in place.

For the first time, GDPR also introduces the requirement to report data breaches. A data controller has 72 hours from becoming aware of a loss of customer details which could leave that individual open to identity theft to report that loss to both the individual and to the Information Commissioners Office (ICO).

Another fundamental difference between the current regime and GDPR is enforcement. Pre-GDPR, the maximum fine which the ICO could impose for a data breach is £500,000. Under GDPR, the maximum fine will be €20Million or 4% of turnover, whichever is greater.

Undoubtedly, GDPR brings in significantly more robust data protection rules and will require all businesses to review and develop their existing data protection policies and procedures. But remember that the core purpose of GDPR is to ensure that all businesses adhere to what should already be best practice.

The ICO’s website contains a lot of essential information about GDPR and will be an invaluable resource for anyone tasked with ensuring that their business is GDPR-ready in time for 25 May 2018.

The content of this blog is for information only and should not be construed as legal advice or treated as a substitute for specific advice given by Mitchells Roberton.

Various Claimants v WM Morrisons Supermarkets Plc

This case serves as a reminder that an employer can be held liable for acts or omissions of their employees if it can be shown that those acts or omissions took place in the course of employment.

In Various Claimants v WM Morrisons Supermarkets Plc, the High Court found the supermarket chain vicariously liable for an employee’s disclosure of colleagues’ personal data. This is the first case of its kind since the introduction of the Data Protection Act 1998.

Mr Skelton, the employee, worked as a senior IT internal auditor and had access to confidential information about his fellow workers. In June 2013, Mr Skelton was subject to disciplinary action which he believed was unwarranted. In November 2013, he obtained payroll data to be passed to KPMG for external audit purposes. He downloaded this to a USB stick for KPMG but also made a personal copy. Just before Morrisons’ annual financial reports were announced in early 2014, Mr Skelton posted the personal  information he had obtained on a file sharing website. He was then arrested and charged with a number of crimes including fraud and an offence under section 55 of the Data Protection Act. He was convicted and given an eight year prison sentence.

His colleagues, whose data had been disclosed, raised a group civil action against Morrisons, seeking redress for breach of the company’s statutory duty under section 4(4) of the DPA 1998, misuse of private information and breach of confidence.

The High Court agreed that Morrisons had no primary liability as they were not the data controller at the time of the breach. However, they were found to be vicariously liable as Mr Skelton’s wrongdoing was carried out in the course of his employment.

As Mr Skelton’s aim was to cause harm to Morrisons, the Court granted the company the right to appeal.

If you are an employer or employee facing difficulties in the workplace, please contact Paul Neilly or Hugh Grant by telephone (0141 552 3422) or email (pdn@mitchells-roberton.co.uk or hjg@mitchells-roberton.co.uk).

Employment Tribunal Fees Ruled as Unlawful

On 26 July 2017, the Supreme Court unanimously upheld an appeal by UNISON that tribunal fees, introduced by the UK government in 2013, are unlawful under UK and EU law. The ruling, described as “momentous”, has led to the existing fees regime being quashed.

UNISON’s claim, first issued in 2013, was that employment tribunal fees prevented employees on low incomes and those facing discrimination from accessing justice. Judgments from the High Court in 2013 and the Court of Appeal in 2015 both ruled in favour of the Government.

From July 2013, tribunal claims were classified as type A or type B based on how long the claim would take to be resolved. A single claimant filing a type A claim required to pay fees of £390. Type B claims attracted fees of £1200.

In practical terms, the decision of the Supreme Court means:

  • Fees are no longer payable for Employment Tribunal or Employment Appeal Tribunal claims.
  • Fees paid since 2013 are likely to be repayable by the Government – this will include cases where unsuccessful employers have been ordered to pay employee’s costs.

The President of the Law Society of England & Wales, Joe Egan, described the decision as “a triumph for access to justice, and a resounding blow against attempts to treat justice as a commodity rather than the right it is.” Egan added the decision of the Court supported the views of many that “the hike in tribunal fees… would deny people the chance to uphold their basic rights at work. Today the Supreme Court has vindicated that view and restored access to justice for those mistreated in the workplace.”

The judgement itself points towards a new regime with fees being set at a lower level or a more generous system of remission but this will require legislation so will take time. Another potential consequence is that time-barred claims may now be submitted on the basis that the unlawful fee regime deterred employees from submitting claims in time.

If you are an employer or employee facing difficulties in the workplace, please contact Paul Neilly or Hugh Grant by telephone (0141 552 3422) or email (pdn@mitchells-roberton.co.uk or hjg@mitchells-roberton.co.uk).

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