Adults with Incapacity (Scotland) Act 2000 - Appointment of welfare and financial guardians - difficulty in obtaining Bond of Caution An application was made by EF and GF to be the appointed both welfare and financial guardians of their uncle. In terms of the 2000 Act, the Sheriff had to fix caution for the value of the adult’s estate. This mandatory requirement could only be dispensed with if the guardians were unable to find caution, but were otherwise suitable to be appointed. Sheriff ...
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Contract - Partnership Agreement- Mutuality of Contract - Retention of performance on basis of Pursuer's breach of fiduciary duty The Pursuer was a former partner in a firm of Stranraer solicitors. He had acted fraudulently when dealing with clients. He accepted that he was in breach of the fiduciary duty he owed to his partners and, therefore, in breach of the partnership agreement. He raised an action in the Commercial Court against the firm and his former partners for payment of a pension. T ...
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Appeal - Children's Hearing - Alleged breach of right to a fair hearing - Article 6(1) of the European Convention on Human Rights The Authority Reporter had presented an application to find whether grounds for referral of a child (MU) to a Children’s Hearing had been established. Following a Proof in relation to the application, MU’s father appealed to the Sheriff Principal arguing that his a right to a fair hearing under Article 6(1) of the Europea ...
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Unfair Dismissal - Reasonableness of dismissal The claimants were employed by the respondents as cleaners. They worked at a “Zara” store and were dismissed when that client required that they no longer work in their premises. They had been offered alternative employment at another store. They claimed that they had been unfairly dismissed. An Employment Tribunal upheld their claims, holding that the dismissals had been procedurally fair but that a reasonable employ ...
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Practice and Procedure - Delay in ET judgment This is an appeal regarding the issue of delay. Over three years elapsed between the last date of the hearing (which had taken place over 2½ years) and the issuing of the judgment by the Tribunal. The question to consider was whether there was a real risk that the claimant had, as a result, been denied his Article 6 right to a fair trial. The Employment Appeal Tribunal held that such a risk did exist.
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Statutory Discipline and Grievance Procedures - Whether applicable Was the modified or standard grievance procedure applicable? The Employment Tribunal found the former, and held that the grievance did not identify the basis of the claims which were subsequently lodged with the Tribunal. Therefore the Tribunal had no jurisdiction to hear the equal pay claims advanced. The EAT held that the tribunal had properly applied the law and the appeal failed.
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Detailed comparison with personal injury awards not appropriate: When determining damages for libel it was not appropriate to make detailed comparisons with personal injury awards, although they could be used as a general test for reasonableness, as could previous awards made by judges (as opposed to juries). Defendants means were irrelevant.
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Single-meaning and repetition rules disapplied where part of article protected by statutory qualified privilege: Where part of the article complained of was protected by statutory qualified privilege, the meaning of the remainder of the article had to be determined without application of the repetition rule; an exception to the single-meaning rule was required.
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Race Discrimination - Burden of proof This appeal discussed the Igen test in respect of the Respondent's burden of proof. The EAT found that the Tribunal had misdirected itself by suggesting that the Respondent's burden was to prove that the treatment was "not significantly influenced by race". The correct test was for the Respondents to show that, on the balance of probabilities, the treatment was "in no sense whatsoever on grounds of race". The matter was remitted to the Tribunal.
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Disability Discrimination - Post Employment Claimant ex-employee in disability discrimination proceedings allegedly subjected by Respondent to abuse and intimidation calculated to deter him from proceeding in the corridor of the Tribunal following a hearing. Claim summarily dismissed by Chairman on basis that alleged conduct attracted the “judicial proceedings immunity”. Held (1) that if the conduct were proved it would arise out of and be closely connected with the employ ...
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