Flexible presence: Singlism: the next target Abusers and child contact: a win-win work deal for equality action? where the law falls down P.14 P.16 P.22 Journal of the Law Society of Scotland Volume 66 Number 3 – March 2021 Smaller prints How to start reducing your business carbon footprint? Some expert advice on managing emissions downwards Publishers The Law Society of Scotland Atria One, 144 Morrison Street, Editor Edinburgh EH3 8EX t: 0131 226 7411 f: 0131 225 2934 Email > [email protected] e: [email protected] Read > www.lawscot.org.uk/news-and-events/blogs-opinions/ Follow > twitter.com/jlsed President: Amanda Millar Vice President: Ken Dalling Chief Executive: Lorna Jack Starting up again Online resources www.lawscot.org.uk (home page) Spring is in the air, at least when the sun the pandemic, to an extent that would www.lawscot.org.uk/members/journal/ is shining, and as the sap starts to rise, so previously have been considered www.lawscotjobs.co.uk emotionally most of us look forward to unthinkable. But if a mutating virus is still at Subscriptions (hoped for) good months ahead. large, to whose benefit is it if we encourage Practising Certificate (inclusive cost) £565; With it, this year, totally understandably, activities that could yet reverse recent Non-Practising Members (UK and Overseas, comes a growing desire, if not impatience, to improvements in infection and death rates? inclusive cost) £315; Annual subscription UK £84; be free of the restrictions that have added to Easy answers there are not, and a Overseas £108; Trainees Free the mental burden of the winter months, on judgment call has to be made as to the point Editorial top of what we endured last year. at which freedoms can be increased without Connect Publications (Scotland) Ltd Therein lies a difficult issue for risking a rise in serious illness that would Editor: Peter Nicholson: 07785 460743 government, reflected in a sharp also re-burden our health service e: [email protected] division of public opinion. On the when it is due some much needed Advertising: Elliot Whitehead: +44 7795 977708 one hand there are those who recovery time. But even that is e: [email protected] argue that COVID cases are not the end of the story. Review editor: David J Dickson declining, most people in the At that point also, if not Online legal news: vulnerable groups have been before, we must not lose e: [email protected] vaccinated, and individuals’ sight of the needs of those Other Connect Publications contacts, wellbeing and significant whose livelihoods will remain telephone 0141 561 0300 sectors of the economy will both at risk for a longer period due to Head of design: James Cargill (0141 561 3030) suffer perhaps irretrievable damage their working lives and/or personal [email protected] if there is not an early return to near finances being thrown into disarray – many Editorial board normality. On the other, many respond that of them with no resources to fall back on. Austin Lafferty, Lafferty Law we have made the mistake of downplaying Emergency protections have been in place Andrew Todd, Springfield Properties Plc the risks before, a large proportion of the regarding housing rights, debt enforcement, Philip Hannay, Cloch Solicitors David Bryson, Baillie Gifford population are still capable of catching and welfare benefits and more, and the transition Ayla Iridag, Clyde & Co spreading the virus, the vaccine is in any out of these will bring equally pressing Kate Gillies, Harper Macleod LLP event not an absolute shield and you cannot questions. Lawmakers and policy makers isolate vulnerable people from the rest of alike have a heavy responsibility to ensure society, and the claimed choice between that the disadvantaged are not left behind in health and the economy is a false one. the rush to restart. The first announcements For what it’s worth, in my view those of support measures continuing through the last points are the clinchers. There is summer are encouraging, but they need to Disclaimer no question that individual liberty has evolve into a properly woven, and probably The views expressed in the Journal of the Law Society of Scotland are those of invited contributors been seriously compromised during continuing, safety net. and not necessarily those of the Law Society of Scotland. The Law Society of Scotland does not endorse any goods or services advertised, nor any claims or representations made in any advertisement, in the Journal and accepts no liability to any person for loss or damage suffered as a consequence of their responding to, or placing reliance upon any claim or representation made in, any advertisement appearing in the Journal. Readers should make appropriate enquiries and satisfy themselves be fore responding to any such advertisement, or placing reliance upon any such claim or representation. 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On no account may any part of this If you would like to contribute to Scotland’s most widely read and respected publication be reproduced without the written permission of the copyholder and publisher, legal publication please email: [email protected] application for which should be made to the publisher. © The Law Society of Scotland, 2021 Kirsty Nikki Sam Gillian Lesley-Anne ISSN: 0458-8711 MacArthur Slowey Middlemiss Baker Barnes Average circulation: is a director of is co-founder of is formerly is a solicitor and Print edition Jul 19-Apr 20: 13,788 Macfarlane Digital edition May-Jun 20: 13,626 consultancy social business Reader at PhD candidate lectures in Audit pending MacArthur Flexibility Robert Gordon at Edinburgh family law Green Works University, Napier at Edinburgh Aberdeen University Napier University March 2021 \ 3 THE JOURNAL OF THE LAW SOCIETY OF SCOTLAND VOL.66 NO.3 – MARCH 2021 Perspectives Features Briefings In practice 04 Journal online 12 28 Civil court 38 Professional news Website exclusives for March Some practical advice on Roundup, on procedural matters Trainees; solicitor advocates; developing a carbon neutral Discipline Tribunal; policy work; 05 Guest view 30 Corporate strategy for your business Racial Inclusion Group; elections David Martyn Actions for “reflective loss” 40 Money laundering 06 Letters 14 30 Intellectual property New LSAG guidance explained Clubhouse app; Reviews Adapting to employees’ desire Copyright in employee creations to work flexibly: and benefiting 42 Schools outreach 07 Offbeat 31 Agriculture Delivering during lockdown Quirky news; Profile column Tenants’ new rights to sell up 16 43 The Word of Gold 08 President Why single people deserve 32 Family Lock-up: it doesn’t hurt to tackle Things to challenge this month protection from discrimination Could a virtual wedding be held? 44 Risk management 33 Data protection 19 Tales of claims from wills and Regulars Update on EU adequacy status Introducing the Environmental executry work Rights Centre for Scotland 34 Discipline Tribunal 46 OPG update 09 People Two cases, including Craxton New guardians declaration 31 Consultations 22 35 Property form; remote working 38 Notifications Women’s experience of Access rights by prescription 41 Archive abuse is often marginalised 46 The Eternal Optimist 49 Classified in contact disputes 36 In-house No such thing as going back? 49 Recruitment Going in-house as an NQ 47 Angiolini report 24 What next for police complaints? The revised welfare test in the Children (Scotland) Act 2020 48 Solicitor advocates Annual Profile of Christine O’Neill 26 Conference 48 Ask Ash Pick and choose: the Society’s preview: Clash of work and virtual 2021 conference Page 26 homeschooling demands ONLINE INSIGHT PUBLISHED ONLY ON WWW.LAWSCOT.ORG.UK/MEMBERS/JOURNAL/ Trading and charitable status: A pensions decision Offending tenants COVID, QOCS context matters for all court lawyers and eviction guidance and CPAP thoughts Alan Eccles considers the A pensions dispute, tax issues, An appeal decision underlines the Carly Forrest, Niamh Murray- significance of the Court of appeals by stated case and importance of landlords having Sheridan and Gemma Nicholson Session’s recent decision on the court’s dispensing power regard to the statutory guidance assess the likely impact on charitable status for the entities regarding non-compliance with in addition to their own policy, personal injury practice this year running activities at the famous its rules: all feature in a recent when tenants are convicted of of the coming of qualified one-way New Lanark heritage site. Inner House decision reviewed offences connected with the cost shifting, and the emergence by Frances Ennis. property, as Jim Bauld explains. of COVID-19 related claims 4 / March 2021 OPINION David Martyn Since the pandemic, employers are increasingly resorting to “fire and rehire” practices to reduce workers’ rights, and protections need to be strengthened OVID-19 has thrown the practice of “fire and rehire” garnered cross-party support, and BEIS has now asked Acas into sharp relief. to review how “fire and rehire” tactics have been used. In aviation and hospitality, terms and conditions While the UK Government has officially described the practice C have been slashed. Employers have relied on as “completely unacceptable”, the bill may go too far for some temporary travel restrictions and social distancing on the right. rules to justify permanent removal of longstanding However, this is not a binary choice. Employee protections could contractual rights – rights which will not be reinstated when be strengthened if, for example, an employer was obliged to show restrictions are lifted. that proposed variations were justified by a genuine existential threat While trades unions have mounted effective industrial campaigns to the viability of the business, rather than just “good” business. against such attacks (most notably in British Airways and British Gas), Alternatively, a statutory compensation tariff could be introduced, is it time to consider more fundamental reform? based on age, length of service and earnings.