The Domestic Abuse Act (Scotland) of 2018 came into force on April 1, 2019. It modifies and expands upon portions of the Criminal Procedure (Scotland) Act of 1995. The act expands the definition of domestic abuse to include psychological abuse and coercive and controlling behavior. It criminalizes both psychological and physical harm directed to a partner or an ex-partner. Section 11.2 defines a “partner” as a spouse or civil partner, a person with whom one lives as a spouse, or a person with whom one is in an “intimate personal relationship.” Section 2 defines abuse as “violent, threatening, or intimidating” behavior that may consist of controlling a victim’s daily activities, causing the victim to become subordinate or dependent on the perpetrator, isolating the victim from friends or family, depriving or restricting a victim’s actions, or frightening, humiliating, degrading, or otherwise punishing the victim. Section 3 contains an extraterritoriality clause covering such conduct occurring partly or wholly outside the country, and thus the abusive behavior need not take place within the United Kingdom. Section 5 creates a is the only UK legislation with a specific statutory sentencing aggravation for the harm that can be caused to children growing up in an environment in which domestic abuse takes place. Section 2.2.n., likewise, includes a victim’s child under the age of 18 as a potential additional victim of abuse. Section 5.3 clarifies that the aggravation can be applied both in cases in which abusive behavior is directed at a child, and in scenarios in which a child “sees or hears, or is present during, an incident of behavior that A directs at B as part of the course of behavior.” The Domestic Abuse Act has been lauded by women’s rights organizations as a “welcome change” that “should increase the opportunity [for victims] to obtain protection and seek justice through the criminal justice system."
Scotland
Legislation
Domestic Case Law
Skills Development Scotland Co Ltd v Buchanan & Anor Employment Appeal Tribunal (Scotland) (2011)
Here, the Employment Appeal Tribunal upheld the appeal of the respondent employer and rejected a prior holding of the Edinburgh Employment Tribunal that found the respondent employer liable for having violated Section 1(3) of the Equal Pay Act for having given a male staff member a more favorable employment contract than two female co-workers and having done so without genuine, material, and sex-neutral factors accounting for this disparity. The claimants in this appeal were two female employees of Scottish Enterprise, a non-departmental public body of the Scottish Government focused on economic development. The women alleged that a male co-worker doing work of equal value had a more favorable employment contract, and that there were no genuine, material, and sex-neutral factors accounting for this disparity. The Employment Appeal Tribunal accepted respondent’s argument that the reason for the disparity in compensation between the claimants’ contracts and that of their male comparator was due to the fact that the terms of the male comparator’s contract were protected under Scotland’s Transfer of Undertakings (TUPE) regulations. These regulations protect an employee’s contract from modification in the case of a business transfer. While the lower tribunal had accepted that this explanation for the disparity was genuine, it held that the respondent should have frozen the male comparator’s salary and not granted him pay increases after a certain period to keep his pay equal to that of the claimants. The Employment Appeal Tribunal rejected this holding and granted the appeal, noting that it was not the respondent’s practice to freeze salaries for any employees. Furthermore, the Employment Appeal Tribunal stated that the lower tribunal had made “no finding that the Claimants suffered discrimination on grounds of sex.” Neither had it made any finding that respondent committed any form of “culpable inactivity” motivated by sex. Finally, the Employment Appeal Tribunal found that the respondent established a valid defense under the Equal Pay Act. The Equal Pay Act states that an employer must show that “that the difference in pay or other conditions is explained by something that has nothing to do with sex.” The Employment Appeal Tribunal found that the respondent made a “causal link between a non gender related explanation and the difference in pay complained of,” and that, therefore, respondent had established a defense. Therefore, it rejected the decision of the Edinburgh Employment Tribunal, upheld the appeal, and dismissed the claims.
A. v. Bonmarche Ltd. (in administration) Employment Tribunal (Scotland) (2019)
Here, the employment judge found that the claimant was entitled to lost wages for the period between her resignation in December 2018 and the start of her new position in September 2019 on the grounds that the claimant “suffered a substantial reduction in her mental wellbeing” as a result of improper treatment and discrimination from her employer in relation to the claimant’s onset of menopause and was thereby entitled to damages emanating from injury to feelings. The claimant alleged that her store manager discriminated against her for being a woman of menopausal age. The claimant had a long work history in retail, had received multiple awards for her excellent performance, and had gotten along with her store manager until the claimant’s onset of menopause. At that point, the store manager would frequently harass and humiliate the claimant in front of her colleagues and customers, specifically commenting about her menopause. The store manager’s disparaging treatment of the claimant weakened her mental state, resulting in a nervous breakdown in November 2018 that required her to begin anti-depressant treatment. Her doctors recommended that she work reduced hours. The store manager ignored this request and told the claimant that if she could not work her full hours, she would be forced to use vacation and sick time to account for the remainder of time. The store manager continued his harassment of the claimant until she resigned on December 4, 2018. After her resignation, the claimant continued to suffer from severe mental distress and anxiety as a result of her treatment and could not find employment until she accepted a part-time position at a charity shop in September 2019. The respondent employer did not contest the evidence presented by the claimant and was absent from the proceedings. The Employment Judge “found it established on the facts that the respondent, by the actings of [the store manager] for whom they were liable, had treated the claimant less favourably than he would treat someone who was not a female of menopausal age.” Furthermore, while the claimant had not made a constructive dismissal claim, the Employment Judge accepted claimant’s position that she “resigned as a result of the discrimination against her.”