Book reviews

Employment Law in Scotland

2nd edition

Sam Middlemiss and Margaret Downie

PUBLISHER: BLOOMSBURY PROFESSIONAL

ISBN: 978-1780436678

PRICE: £75

My colleagues and I have been using this book alongside our other sources over the summer months to test its usefulness in the context of our broadly varied employment practice. It certainly has its place.

As the title suggests, this is a useful introductory text. Our usage bears that out. It is particularly useful for trainee-level lawyers and, it would follow, for specialising students too. It is compendious in its scope and scholarly in its content.

Concepts and definitions are simplified, and the practical guidance is up to date: there are particularly good sections on the ACAS early conciliation scheme and the employment tribunal fees regime. By moving beyond the central tenets and principles of employment law to accommodate such procedural innovations the authors succeed in increasing the value of the contents, while at the same time hastening the demise of this particular edition: at one stroke of the minister’s pen (whether in Westminster or, more likely, Holyrood) these sections will appeal only to legal historians.

The sections on fixed term contracts and continuity of employment contain good citation of recent authority and are presented in accessible language. The same cannot be so easily said about the treatment of frustration of contract, a simple contractual concept in itself. Understanding the application of the doctrine in the employment context, however, can be difficult, most notably because of the well-established statutory employment protection framework, which principally shields employees from unfair dismissal. The treatment here is too cursory to do justice to the topic, and risks confusing the reader.

The authors tell us that frustration of purpose will lead to the employment contract ending without dismissal. So far, so heterodox. But, in the same section it is also said that “Many instances of frustration of contract will be regarded as a dismissal for the purposes of unfair dismissal legislation.” The reader needs background knowledge (not provided in the text itself) in order to reconcile these two positions which on their face are contradictory. This emphasises the importance of using this book alongside other more detailed, specialist sources to solve the complex or controversial questions which the deceptively simple topic of employment law seems to have a nasty habit of posing to practitioners and judges.

Our consistent experience has been that when researching higher order employment questions such as this, this text, at its best, is an entry point.

With the employment law of Scotland being almost fully consistent with its equivalent in England & Wales (the statutory provision is identical and will remain so for as long as employment remains a matter reserved to Westminster; theories of contractual interpretation between the jurisdictions have converged, with respective authorities being deployed interchangeably; and of course European law dominates), it is interesting to consider what the book includes to justify its focus solely on our own jurisdiction.

There is an engaging historical sketch in the introduction, a helpful treatment of the different approaches to legal aid on either side of the border, a note on the peculiarly Scottish approach to capacity and a short section devoted to the civil court structure in Scotland (as it was at the time of the book’s publication), but little else in its 700 pages to mark the book’s choice of discrete jurisdiction.

This is not to suggest that there are omissions, but rather that in choosing the title the authors (or publishers) may have limited the reach of this useful addition to the library of the practising employment lawyer.

Local Planning Reviews in Scotland

Andrew Ferguson and John Watchman

PUBLISHER: AVIZANDUM PUBLISHING LTD

ISBN: 978-1904968078

PRICE: £38

Those of us whose practice is mainly property law think that we know what is involved in the planning process – until we have cause to delve into planning law and practice in the event of a refusal to grant planning permission or whatever. The result can often be a journey into the unknown where uncertainty abounds.

New local planning review bodies were introduced in 2009 as a result of the Planning etc (Scotland) Act 2006. It was planned that this would restore confidence and trust in the planning system in Scotland.

I see no benefit in describing what is contained in each chapter. That is summarised in the Introduction of the book and in the individual chapters. Better that you read the book for yourself. It is a concise statement of law and practice and all property professionals should either read it or know where to access same when required. At just 223 pages it is easy to work through.

If I have one grumble, it is that the authors do not offer any form of conclusion to their findings. All texts should have a beginning, a middle and an end. This book has the first two but is missing an “end” in the form of conclusions as to how the present system is working and how it can be improved. I can understand why this might be difficult, but some form of concluding chapter would have been preferable to the book ending with a summary of how to complain to the Scottish Public Services Ombudsman. It is understood, however that no government review of the operation of local review bodies has been undertaken yet. Any assessment of improvements to the planning system will presumably be undertaken as part of the ongoing “root and branch” review of the planning system.

By way of final comment, I should like to agree with the authors when they state that planning authorities do not live in the world of Humpty Dumpty, in that they cannot make the development plan mean whatever they would like it to mean. See p146 and footnote 6.