Employment tribunal awards over £13,000 in deducted wages to dentist who worked as Covid vaccinator

By Mitchell Skilling

Audrey Kershaw, who qualified as a dentist in 1987, raised the claim against Tayside Health Board arguing that she had been underpaid for her work as a vaccinator, which arose from the fact that she had qualified as a dentist before the introduction of a now compulsory vocational training scheme.

The case was heard by Employment Judge I McFatridge sitting alongside Tribunal members J McCullagh and A Shanahan. Mr Oxton, advocate, appeared for the claimant and Ms Craik, solicitor, for the respondent.

No VT number 

The claimant was trained in maxilla-facial surgery in England following her qualification and later worked in Dundee Dental Hospital as an oral surgeon and later associate specialist until going freelance in 2016. At the time the claimant qualified as a dentist, it was not compulsory for her to carry out vocational training. As a result, when she went freelance, she had been unaware that she could not obtain an NHS list number without first obtaining a VT number.

From 2016 to 2020 the claimant charged her NHS work using a colleague’s list number having been advised to do so by an employee of Kings Cross Hospital in Dundee. While there was a system in place for dentists qualified before 1993 to be grandfathered into obtaining a VT number, the claimant believed she did not qualify for the scheme as she had done specialist rather than general dental work.

In 2020, the claimant signed up to participate in the Covid-19 vaccination programme, under which she understood that dental contractors would be paid £230 per session per a Scottish Office memorandum. After difficulties were raised concerning her lack of a VT or NHS list number, her line manager enrolled her in the Band 5 vaccinator role, for which she did not receive the £230 contractor rate.

As a result of this, the claimant received £3,086 for her vaccinator role as opposed to be £16,285,50 she would have been entitled to under the contractor rate. She considered that the reason for this was that she did not have a VT number and that this was related to her age. Her position before the Tribunal was that £13,199.50 had been unlawfully deducted from her ages.

Respondent’s intention 

In its determination, the tribunal observed: “The claimant’s recruitment appears to have been done on a fairly informal basis. At the time the information available to both the claimant and the health board would be that contained in the Scottish Government Memorandum of 30 November. The Tribunal accepted the claimant’s evidence that in her mind there was really no question but she was going to be paid £230 per session. There was absolutely no evidence from the respondent to suggest that the person who recruited the claimant had any different view.”

It continued: “The only reasonable interpretation of the respondent’s intention at the time the claimant was hired was that she be paid the sessional rate of £230 per session applicable to dentists. For this reason the Tribunal considered that the amount properly due under the claimant’s contract with the respondent was the sessional rate of £230 per session. It therefore follows that the claimant has suffered a series of unlawful deductions from wages, the last of which took place on 30 September 2021.”

Turning to the claim of indirect age discrimination, the tribunal said: “The Tribunal’s view was that we would have preferred to have heard much more evidence in relation to precise difficulties which the claimant would face simply based on her age rather than the fact that she had been out of general dental practice for some time. The claimant was asked about carrying out the NEST training and indicated that she would be required to do work which she was well capable of doing but would be below her skill level and essentially a waste of her time.”

It concluded: “The Tribunal’s view was that the claimant had failed to adduce sufficient facts from which we could make a finding that the PCP adopted by the respondent indirectly discriminated against her and those of her age group. The claim of age discrimination therefore fails. We should say that had the claim of age discrimination succeeded, the claimant would not have been entitled to double accounting and the only compensation she would have received would be a payment of compensation for injury to feelings which we would have assessed at £1,000.”

The tribunal therefore ordered the respondent to pay the claimant the sum of £13,199.50 but dismissed the claim of indirect age discrimination.

Police Scotland records more data breaches than any other force

The figure is the highest of all forces in the UK that provided information on their data regimes, The Scotsman reports.

The report was compiled by Legal Expert, part of JF Law Limited, a Merseyside law firm. It made freedom of information requests of all forces both sides of the border for data from between January 2019 and November 2021.

Only 11 of the 47 forces queried provided complete responses. Some ignored the requests.

Across the UK as a whole, there were some 13,332 suspected data breaches, or around 19 incidents per day.

Ninety per cent of forces had dealt with at least one suspected security incident while 59 per cent had identified more than 100. More than a quarter of all incidents were attributable to email misuse.

The report said: “Data breaches are a prominent issue for police forces and, given the number of claims made against forces, they are, potentially, a financial burden.”

Jamie Greene, the Scottish Conservatives’ shadow justice secretary, said: “The number of data breaches from police scotland are a source of concern due to the serious security implications they give rise to.

“Some of these breaches are the result of human error and, sadly, that is more likely when Police Scotland is overstretched due to officer numbers falling to their lowest levels since 2008 and when capital funding, including for IT systems, has been cut by the SNP government.”

Shepherd and Wedderburn appoints Peter Smith to lead property team in Aberdeen

Mr Smith, who will lead the development of the firm’s real estate practice in the north-east of Scotland, joined Shepherd and Wedderburn on 1 August, having been a partner in Burness Paull’s commercial real estate team since 2012.

He has a broad client base operating across sectors including hospitality and leisure, oil and gas services, retail, development and agriculture/rural business, and is individually ranked by Chambers and Partners.

Andrew Blain, managing partner at Shepherd and Wedderburn, said: “I am pleased to announce that Peter will join the firm to lead and further the development of our real estate practice in north-east Scotland. I am confident that with his local insight and well-established network in the region, Peter will play a key role in helping us to achieve our growth ambitions.”

Mr Smith said: “I am delighted to be joining Shepherd and Wedderburn. The firm recognises that the north-east is a great place to work and do business, and is committed to growing its practice in the region. Shepherd and Wedderburn has a clear strategy for sustainable growth and it is exciting to become part of it.”

Legal projects receive Scottish government equality funding

The Scottish Women’s Rights Centre and social enterprise JRS Knowhow will lead a learning programme on gender-based violence for professionals across the sector while neurodiversity charity Salvesen Mindroom Centre is partnering with Burness Paull and other employers on a pilot scheme promoting neuroinclusion at work.

The two schemes are among of 13 projects that successfully applied to the Scottish government’s Workplace Equality Fund.

The Scottish Women’s Rights Centre and JRS Knowhow will train 120 workplace advocates across a range of legal bodies on issues surrounding gender-based violence. Backed by the Law Society among other bodies they plan to support small, medium and large-scale operations across Scotland.

The Salvesen Mindroom Centre supports children, young people and families with learning difficulties, such as autism, ADHD and dyslexia, as well as training organisations to create more inclusive environments. It’s Neuroinclusion at Work programme involves major companies across a range of sectors, which will each pledge £5,000.

The pilot scheme with Burness Paull includes a suite of workplace training, best practice roundtables and development of resources to support more inclusive workplaces.

Katy Mathieson, co-ordinator at the Scottish Women’s Rights Centre, said: “Our team at the SWRC are delighted to welcome this funding from the Scottish government. The Workplace Equality Fund will be vital in advancing work in the prevention of sexual harassment in the legal sector.

“We are excited to add a specialised gender-based violence lens to the context of the legal profession - in a trauma informed and needs-centred way - as well as provide survivors with reassurance that we are actively working to tackle sexual harassment and violence in the legal sector.

“Collaboration and partnership are core to our work across the board in policy, training and communications, so going forward we hope to incorporate this into how we utilise this funding.”

Jen Ang, director at JRS Knowhow, said: “We know that sexual harassment is a problem in the legal sector globally, and Scotland is no exception. Together with the Scottish Women’s Rights Centre, we will develop workshops and training materials for anyone hoping to make the Scottish legal sector a more safe and inclusive environment.

“We aim to work with stakeholders to create resources that are trauma-informed and improve the understanding of how to recognise and redress sexual harassment in the workplace.”

Alan Thornburrow, chief executive at Salvesen Mindroom Centre, said: “We are absolutely delighted to receive this funding award. For some time now Salvesen Mindroom Centre has been in conversation with a range of forward-thinking employers about how they can fully support and develop a neurodiverse workforce.

“Simply put, workplaces that recognise, embrace and support neurodiversity will attract and retain the best employees.

“This WEF award will help us to work collaboratively with partners such as law firm Burness Paull, to develop a scalable programme of Neuroinclusion at Work: it’s the vital next step on the way to achieving equity in the workplace.”

DAC Beachcroft reports uptick in turnover to £280m as profits dip

Profit per member was around £652,000, down from £700,000 in the previous year, according to the firm’s provisional, unaudited results for the year ended 30 April 2022.

Managing partner David Pollitt said the firm had “posted very strong numbers” in the previous fiscal year and had taken “the strategic decision to reinvest some of this back into the business”.

Mr Pollitt said: “This year, for example, we made a significant investment in a new practice management system which came online last summer and will underpin our firm for years to come.

“We have also put substantial funding behind cloud technology and cyber security to help us work smarter and to futureproof the firm.

“Our focus on pursuing international growth has been reinvigorated and we expect to bring projects to fruition during the course of FY23. The investments are significant, made possible by a strong FY21, and we are confident that they will further strengthen our business and support our ability to be agile and better meet the growing needs of our clients.”

Philip Buchan takes up new role at Blackadders

Mr Buchan, who specialises in countryside matters, will work closely with the firm’s partners in the provision of advice to private clients with rural interests and implement the firm’s plan for continued growth in the rural sector.

He said: “Blackadders is a long-established law practice providing high quality legal advice to individuals and businesses across Scotland. I am looking forward to leading and developing the rural group and to building long-term relationships with existing and new clients”.

Managing partner, Emma Gray, said: “I am delighted that Phil has taken up this position. We recognise the huge range of issues and opportunities that prevail in our rural communities. With Phil’s vast experience in this field I am confident that our rural clients will benefit from his expertise.”

Police Authority questions Scottish government account of mental health staffing

Under Action 15 of the Mental Health Strategy 2017-2027, the Scottish government committed to ensure access to a mental health professional in every police custody suite within five years.

It announced last month that 35.6 WTE mental health workers had been recruited for custody suites under the action plan.

However, in response to a written question from Scottish Liberal Democrat leader Alex Cole-Hamilton asking for the total number of mental health professionals in police station custody suites, Justice Secretary Keith Brown claimed that the government “does not hold data on the mental health workforce in police custody suites”. Police Scotland currently have 69 police station custody suites.

It has now emerged that papers prepared for the Scottish Police Authority’s meeting on 26 May described the provision of dedicated mental health professionals within police custody settings across Scotland as “inconsistent”. 

Commenting on the revelation, Mr Cole-Hamilton said: “A fortnight ago, the Scottish government were keen to declare mission accomplished on their mental health recruitment programme but the truth is anything but. 

“First Scottish Liberal Democrats revealed that staff based in a host of other settings were being included in order to inflate the total recruitment figures. Then the Justice Secretary claimed that his government has no idea how many mental staff there are working alongside the police. No wonder police bosses are now warning that the plan is inconsistent. 

“Mental health staff in custody suites can provide a huge benefit. The lack of support elsewhere leaves the police picking up the pieces of the mental health crisis.

“Officers spend whole shifts accompanying people in distress to A&E. That’s a really difficult shift for someone who is not a mental health specialist so having specialists on hand is important both for keeping the public safe but also for allowing frontline officers to get back on the beat. 

“It’s been clear for several years now that the Scottish government were not going to meet this key staffing target, but rather than redouble their efforts, they have chosen to cheat and include staff recruited for other settings and claim that this means they have met their target.

“The Scottish government have had years to get on top of this issue. These critical services are under huge pressure. It is time for a major recruitment drive.”

Five new trainees at Lindsays

The five will start their rotations in a variety of departments across Lindsays’ three city offices. They are:

• Kaytlin Irvine (commercial property) – Edinburgh
• Kirsten Boettcher (dispute resolution and litigation) – Edinburgh
• Jonathan Carey (employment) – Glasgow
• Carla Codona (personal injury) – Glasgow
• Emma McFarlane (residential conveyancing) – Dundee

Alasdair Cummings, Lindsays’ managing partner, who himself trained at the firm, said: “We are delighted to welcome our five new trainees. Our goal is to have the right staff with the right skills to advise and support clients. And we want our staff to understand the Lindsays way – we are not about transactions, we are about relationships.

“Our focus on relationships is true for our clients as well as our staff. We have many lawyers and partners who completed their traineeships with us – me included.

“I hope, one day, we might be able to say the same about Kaytlin, Kirsten, Jonathan, Carla and Emma.”

Show exploring human rights legacy of David Maxwell Fyfe comes to Edinburgh

Sir David, a barrister, served as the UK’s deputy chief prosecutor at the Nuremberg Trials.

This summer, as the ECHR faces the biggest challenge in its 70 year history, English Cabaret, a professional theatre company formed of members of Sir David’s family, will contribute to the ongoing debate with small-scale performances of Dreams of Peace & Freedom.

Creator and director Tom Blackmore said: “In 1947, eight groups came to perform uninvited at the new international festival. They inspired today’s Fringe. I first produced on the Fringe 44 years ago, and have returned many times since to create new work.

“The Fringe has always needed ghosts, those who return each year to use Edinburgh in August as a laboratory for expression and experimentation. And now, as the Fringe becomes more managed and curated, and tied to big tech, it needs ghosts more than ever. This year, 75 years on, we return as ghosts of the ‘8,’ for the first time unbooked and uninvited, with a ghost story and an exorcism from the age of the Festival’s birth.”

The show is being performed at C cubed on the Royal Mile every evening at 7.10pm.

Irish Judge Síofra O’Leary leads field in election for ECtHR presidency

Human rights campaigners and legal experts speaking to our sister publication Irish Legal News warmly welcomed the Dublin-born judge’s potential appointment to the prominent role as a boost to the court as well as to Ireland’s international reputation.

Judge O’Leary’s appointment would be “without doubt the highest achievement of any Irish judge on a European-level court”, Bill Shipsey, a retired barrister and former chair of Amnesty International Ireland, said.

Mr Shipsey added: “It reflects the deserved high regard in which Judge O’Leary is held. Not only would she be the first Irish president of the court in the 63 years since the court was established in 1959, but also its first woman president.

“This would be a monumental and substantial boost for Ireland’s international legal and judicial reputation.”

Michael O’Boyle, a barrister and deputy registrar of the ECtHR from 2006 to 2015, described Judge O’Leary as “very much a lawyer’s judge” who is well liked and would make “an excellent president”.

If successful in the election this autumn – and he believes that is “a fairly safe bet” – then her appointment will “provide a great headline” for an Irish government eager to promote Ireland internationally as a leading legal player, he said.

He pointed out that the role would see Judge O’Leary receiving international guests including heads of state, ministers of justice and chief justices, as well as travelling across the continent. “She would become a high-profile legal figure in the European constellation and a very important figure,” he added.

The next president of the court will take the reins at a time when the court, freshly emerging from the pandemic, is dealing with the fallout of the Russian invasion of Ukraine, which has led to Russia’s departure from the Council of Europe and the European Convention on Human Rights, as well as the UK’s potential withdrawal.

It is also dealing with a significant backlog, having over 70,000 pending cases, and there continue to be disagreements over how outstanding complaints against Russia should be dealt with following its international isolation.

“That will be a huge issue to be faced with,” Mr O’Boyle said. “This is a court that has its back against the wall on a constant basis.”

A graduate of University College Dublin with a PhD from the European University Institute in Florence, Judge O’Leary spent years lecturing on EU law at a number of universities prior to her appointment as an ECtHR judge in 2015.

She was appointed as vice-president of the court in January 2022.

Scots Law Series Early Bird offer ends Friday

Roy Spiers, CLT Scotland’s Director of Programmes, said: “Practical, statutory and caselaw developments have continued apace in what have been unprecedented times for the legal profession.

Our online conferences reflect that evolution and we are delighted to attract a panel of expert speakers drawn from the Bar, the accountancy, medical and surveying professions, academia, private and public practice who will offer delegates an opportunity to understand the current challenges and how best to face them.

Given the current economic climate, I’m delighted that we are in a position to offer these conferences at a reduced rate making them as cost-effective as possible.  The initial response has been excellent and I do hope even more will take advantage of our offer before it closes on Friday.”

Covering the individual subject areas of Conveyancing, Personal Injury, Rural Law, Intellectual Property, Contract Law, Licensing, Family Law, Commercial Property, Employment and Private Client, each conference provides 6 hours’ CPD with the Early Bird discount available for bookings received on/before 12 August.

To book your place or find out more information visit CLT Scotland’s website, email enquiries@clt.scot or call 0141 225 6700.

Quote of the day

Human history, like all great movements, was cyclical, and returned to the point of beginning. The idea of indefinite progress in a right line was a chimera of the imagination, with no analogue in nature. The parabola of a comet was perhaps a better illustration of the career of humanity. Tending upward and sunward from the aphelion of barbarism, the race attained the perihelion of civilization only to plunge downward once more to its nether goal in the regions of chaos.

Edward Bellamy, ‘Looking Backward: 2000–1887’ (1880)

And finally… Boris stand-off

The seven foot wooden mannequin is based on the actor Boris Karloff, who played the monster in his films in the 1930s and 40s.

The Natural History Museum of Los Angeles County (NHM) claims ownership, saying it owns both the dummy itself and the clothes and that it “did not consent to the sale of these objects”, The Telegraph reports.

The monster was donated to the NHM in 1935 by Universal Studios, the production company for Bride of Frankenstein. It was thereafter given to the Academy of Motion Pictures in 1949. The dummy and clothes were reportedly destroyed in 1967, with the pieces thought to have been lost.

In 1988, however, the mannequin and clothing resurfaced and were bought at auction by the Museum of Moving Image in London. The museum closed in 1999.

The NHM said it did not consent to the sale of the objects.

Who owns the mannequin and its clothes?

Advantages of Custom Legal Case Management Software

In 2022 law firm leaders are choosing customisable legal software because of its high ease of use and automation levels, which is resulting in a marked improvement in employee productivity and business efficiency.

In this article Grant Yuill, Denovo’s head of marketing, sheds light on the key advantages, scalability and flexibility which allows their custom software, CaseLoad, to adapt to a law firms growing business needs over time.

Read more – Law Firm Case Management Software