News Archive for January, 2012

Lost ET1 Claim by Fax Presented in Time

An employee wishing to bring an unfair dismissal claim must do so within three months of their effective date of termination (EDT).

Time limits for presenting claims to the Employment Tribunal (ET) are normally strictly enforced.

Rule 1 of the ET Rules of Procedure states that the claim must be made in writing, which includes applications sent by fax and by email.

In Yellow Pages Sales Ltd. v Davie, Mr Davie’s solicitor presented his claim of unfair dismissal to the Employment Tribunal Office (ETO) on his behalf.

The EDT of Mr Davie’s employment was 25 May 2010, so the last date for submission of the Form ET1 was 24 August 2010. The solicitor faxed the claim on 13 August and received a transmission report confirming receipt. He then went on holiday.

On his return on 31 August, he noticed that there was no acknowledgement of receipt from the ETO on file and phoned to investigate. A member of staff could find no trace of the ET1 so the solicitor faxed through a further copy together with a copy of the communication report confirming receipt by the fax machine at the ETO.

At a pre-hearing review, the Employment Judge, who was assisted by expert evidence from a telecommunications engineer with experience of fax communications, held that there had been a successful transmission of all the relevant data in electronic form from the solicitor’s fax machine to the machine at the ETO and the absence of any printout or
record of this was due to an unexplained technical fault at the ETO’s end.

The claim had therefore been presented within the meaning of Rule 1 within the allowed time limit.

Yellow Pages Sales Ltd. appealed against this decision on the ground that the Employment Judge had erred in law because no claim in writing had actually been received.

The Employment Appeal Tribunal disagreed. Mr Justice Underhill held that what was faxed was a written document and would have been conveyed as such were it not for the malfunction of the ETO’s system.

The ET1 Form had been communicated in a fixed form notwithstanding that it was, in effect, lost at the ETO’s end.

To find otherwise would be equivalent to saying that the contents of an email are not received until the recipient clicks on his or her inbox and the words become visible, which would be ‘absurd’.

Posted by Peter Nicholas on Tuesday, January 31, 2012 at 01:33 PM

Employee References – What is Fair?

When giving a reference, an employer has a duty of care to an ex-employee to ensure that the information provided is true, accurate and fair.

In Jackson v Liverpool City Council, the Court of Appeal has given useful guidance on how to deal with the situation when concerns regarding an employee’s work come to light after he or she has left your employment.

In this case, Liverpool City Council provided a reference for an exemployee
but failed to answer certain questions because of concerns regarding his work, which had arisen after he left their employment and had
not been investigated.

The Council did make it clear, however, that the concerns would have warranted a formal improvement plan rather than more serious disciplinary action had the man remained an employee and that it was not in a position to answer the questions in ‘either a positive or negative manner’.

The ex-employee failed to get the job he was seeking and brought a claim for damages in relation to the reference provided by the Council.

The Court of Appeal had some sympathy for the ex-employee but took
the view that the reference could not be said to be unfair. In the Court’s view, Liverpool City Council could not be criticised for providing a reference and, in the circumstances, could not be reasonably criticised for including within it a cautionary remark.

The Council had made it clear that it could not answer the questions in either a positive or negative manner. It was then a matter for the prospective employer to raise the issues with the candidate himself.

Had the Council failed to provide a reference, it was likely that more serious
adverse inferences would have been drawn as a consequence.

The Court held that accuracy and truth go to the facts which form the basis of the reference and fairness goes to the overall balance of the reference and any opinion contained within it.

This does not mean that there has to be some sort of fair procedure for the ex-employee to challenge an adverse opinion but is related to the ‘nuances or innuendo’ that might be drawn from the assertion.

Employers should exercise caution when issuing references. We can advise you if you are asked for a reference and are in any doubt as to how to proceed.

Posted by Peter Nicholas on Tuesday, January 31, 2012 at 01:22 PM

Payment for Sleeping on the Job

As the law currently stands, when a person is provided with sleeping facilities at their
place of work but remains ‘on call’ throughout their shift, the entire time spent at work will normally count as working time for the purposes of the Working Time Regulations 1998 (WTR). Different rules apply, however, when determining whether or not a worker is entitled to be paid the National Minimum Wage (NMW) during that time.

In a recent case (Wray v JW Lees & Co. (Brewers) Ltd.), Ms Wray worked as a temporary manager for JW Lees & Co., which owns over 170 pubs, filling in when there was a vacancy at one of its premises, which are mostly tenanted. 

In October 2008, she began providing cover at the White Hart in Mottram. Under the terms of her contract, she was required to sleep there each night.

In May 2009, she was dismissed for redundancy and brought a claim for unfair dismissal and failure to pay the NMW. She contended that she was entitled to be paid for the hours she was required to sleep at her employer’s premises. If those hours were taken into account, her rate of pay was less than the minimum hourly rate allowed by law.

The claim was decided solely with reference to evidence of the time Ms Wray spent working at the White Hart. The Employment Tribunal (ET) dismissed both of her claims. She appealed against the decision regarding payment of the NMW.

The Employment Appeal Tribunal (EAT) found that the ET had erred in deciding the case under the WTR, which have no application in the context of a NMW claim. The issues should have been determined exclusively by reference to the relevant provisions of the NMW Regulations 1999.

However, in spite of this error, the EAT was satisfied that the ET was correct to dismiss the claim.

On the facts of the case, Ms Wray was required to sleep at the White Hart as a ‘minimum security or preventive measure’. Once the pub was closed, she was not required to do any actual work.

There were no ongoing responsibilities during the night, as there would be for a worker in a hotel or care home, for example. She was not required to remain at the premises every minute of the day and there was no evidence to suggest she would be disciplined if she left the premises for a short period of time.

The EAT cited South Manchester Abbeyfield v Hopkins as authority that not all hours spent on call count for the purpose of a claim under the NMW Regulations. A person will only be entitled to payment if he or she is awake for the purposes of working.

Ms Wray’s appeal was therefore dismissed. One feature of this case was that the employer did not have a copy of the worker’s contract of employment. The risk of disputes such as this arising can be minimised if the nature of the worker’s duties outside normal working hours is clearly understood at the outset and set down
in writing.
 

Posted by Peter Nicholas on Tuesday, January 31, 2012 at 01:17 PM

Conduct Determines Legal Ownership

When a property is owned by two people as joint tenants (where the title to the property is owned by each of them, so that if one dies, the other inherits the property by survivorship), each of them is considered to be the legal owner of the property.

A man and woman bought a house in 1992 as joint tenants.  They separated in 2001, leaving the man in occupation.  The woman and her daughter moved out.

The man issued a notice severing the joint tenancy and sent copy notices to his ex-partner. The effect of this would be to change the ownership to a ‘tenancy in common’, whereby each of them would own a 50 per cent share of the house.

However, the copy notices were never received by his ex-partner.  Later, the man began to suffer from mental incapacity and his daughter was appointed his deputy, to look after his affairs. His ex-partner applied to the Court of Protection for permission to sell the house so that his share could be used to pay for his long-term care, but before this could take place, the man died and his deputy was then appointed the personal representative over his estate.

The question then arose as to whether or not the joint tenancy had been severed. If not, the house would not form part of the man’s estate, but would pass to his ex-partner by survivorship.
The personal representative argued that the tenancy had been severed, by virtue of the mutual conduct of the man and his ex-partner. The court disagreed, but concluded that the joint tenancy had been severed by his ex-partner’s application to sell the house and to divide the net proceeds.

What this case shows is that where people demonstrate a clear intention to sever a joint tenancy (as will normally be the desired outcome on divorce or separation) but the formalities are not completed, the court will look at their conduct overall to determine the correct position.

For advice on all matters relating to property ownership
or relationship breakdown, contact us.

Posted by Peter Nicholas on Thursday, January 26, 2012 at 10:22 AM

Lotto Win Not Part of Family Assets

A court ruling that a spouse’s lottery winnings were not ‘matrimonial property’ so were not subject to the usual rule of equal division between the spouses when the marriage broke up received much publicity recently.

The normal rule is that matrimonial property (assets built up during the marriage) is divided equally on divorce. Non matrimonial property (normally assets brought into the marriage or inherited by one party during the marriage) is not subject to the equality principle.

Although this case has been seized upon by some commentators to mean that if you win the lotto you can part from your spouse or civil partner and be sure of retaining your winnings, the reality is not so clear-cut.

The case was decided by Mr Justice Mostyn. Neither party was legally represented, neither spoke English and the precedent case law stemmed from Australia.

In 1999, the wife and a friend won £1 million in a lottery and this they divided equally. She apparently did not tell her husband about her good fortune, but did use the money to buy them a house.

The couple’s marriage appears to have been in difficulty for some years before divorce proceedings were commenced, and they were divorced in 2006.

The court hearing was to determine the financial settlement between them. Both have low-paying jobs and the husband

is nearing retirement. On the basis of needs, the judge ordered the wife to pay her ex-husband £85,000.

The facts in this case were highly unusual and it may well be that a different conclusion would be reached in different circumstances.

For advice on all aspects of family law, contact us.

Posted by Peter Nicholas on Thursday, January 26, 2012 at 10:17 AM

THE BRIBERY ACT 2011

At the end of 2011 a court clerk became the first person to be convicted under new bribery legislation.

Munir Yakub Patel, 22, had used his position as an administration clerk at Redbridge Magistrates' Court, East London, to "get rid" of a speeding charge for a member of the public. The clerk who was subject to a sting operation by a national newspaper admitted one count of bribery although prosecutors believed he had earned at least £20,000 by helping 53 offenders.

This was the first prosecution and conviction under the Bribery Act 2010, which came into force on July 1st 2011.

As well as applying to all UK nationals, the Act applies to all UK businesses. Businesses can face unlimited fines as a penalty for falling foul of the new legislation, and one offence in particular under the Act that is causing most concern is the corporate offence of "failing to prevent bribery".

This offence is committed by any commercial organisation if one of its employees, agents or any person performing services on its behalf pays a bribe. It is irrelevant that the company did not sanction the bribery - they don't even need to know it took place. The offence is "strict liability", which means that the company is automatically liable. The only defence is that a company has in place "adequate procedures" to prevent bribery taking place.

But what does "adequate procedures" mean, and how can companies ensure that they can avail themselves of the defence? Unfortunately, the answer is not one size fits all. The Ministry of Justice has indicated that companies need to take a reasonable and proportionate response - and one that is based on an assessment of the risks faced by that company.

Regardless of their size or location, companies will need to engender a strong anti-bribery culture embodied by those at the top of the organisation, undertake careful due diligence on third parties that they do business with and put in place an integrated anti-corruption compliance regime to address their bribery risks.

There has been a very relaxed approach by businesses to the implementation of the act, the first real piece of anti-corruption legislation since 1906. In tough economic times perhaps businesses could have been forgiven for taking the 'my doctor approach' - You know, how many of us are proactive when it comes to seeing the GP? We normally go when we are unwell. This reactive approach is one followed all but too often by businesses but surely with this deterrent sentence being passed perhaps it will act as a wakeup call to those who may have heard of the obligations placed on them under the act but decided to leave in abeyance the anti-corruption policy, due diligence and risk assessment? Some of which would be needed to establish a defence to the corporate offence of failing to prevent bribery.

Mike Davey, Solicitor within the DPA Law the business services department, says: “ensuring the correct procedure is properly followed will help organisations show they have taken the bribery risk seriously. For many companies this will mean implementing new policies, new or improved training throughout the organisation (including training for all employees and intermediaries), and a more thorough approach to tackling the risk of bribery in the UK and abroad”.

If your business needs any help or advice in relation to the Bribery Act 2010, please do not hesitate to contact DPA Law via email mike.d@daviesparsonssolicitors.co.uk or by telephone 01554 749144

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Posted by Peter Nicholas on Monday, January 23, 2012 at 12:52 PM

Government to Outlaw Squatting in Residential Premises

The Ministry of Justice has now published its response to the recent consultation on proposals to criminalise squatting. The consultation paper, entitled ‘Options for dealing with squatting’, received over 2,000 responses.

As a first step, the Government is proposing to make squatting in residential properties a criminal offence.

The offence would be committed where a person:

  • was in the building as a trespasser having entered as such;
  • knew or ought to have known that he or she was a trespasser; and
  • was living or intending to live in the building.

Section 7 of the Criminal Law Act 1977 already makes it a criminal offence for a trespasser to fail to leave residential premises when required to do so by or on behalf of a ‘displaced residential occupier’ or a ‘protected intending occupier’.

While this allows those who are effectively made homeless by squatters to take action, it does notprotect landlords or owners of second homes.

At present, the Government is not planning to criminalise squatting in commercial premises.

The legislation will not apply in situations where the property has previously been occupied legitimately, such as where tenants fall behind with their rent payments.

If you are having problems with unauthorised use of your property, contact us for advice.

Posted by Peter Nicholas on Wednesday, January 18, 2012 at 03:40 PM

Landlords Lazy Over Cost Control

According to a recent ‘Which?’ report, landlords are lazy when it comes to makingn sure that costs such as insurance premiums and the like, that are passed on to their tenants, represent good value for money.

Which? reports that tenants who have taken responsibility for arranging their own insurances have achieved savings of up to 60 per cent.

If you believe that costs passed on to you by your landlord are too high, you may be able to challenge them. If straightforward negotiation fails, options such as going to the Leasehold Valuation Tribunal to set the service charges or forming a tenants’ management group may be available. We can advise you on your options.

Posted by Peter Nicholas on Wednesday, January 18, 2012 at 03:29 PM

Court Backs French Pre-Nup

Although pre-nuptial agreements are persuasive rather than binding under English law, a recent ruling of the High Court on a French ‘pre-nup’ illustrates clearly the current approach of the courts.

It involved a very wealthy French couple who married in France in 1994, having entered into a pre-nuptial agreement. They moved to London in 2007, at which time they were already discussing separation.

They separated in February 2008 and informed their children the following July. The wife then commenced divorce proceedings in the UK.  The couple’s decree nisi was granted in 2010, but has not yet been made absolute.

The husband contested the commencement of divorce proceedings in the UK, arguing, unsuccessfully, that the divorce should be conducted under French law.

Unusually, the value of the family assets was not in dispute, so when the financial settlement came to be dealt with, it was only the split of the assets that needed to be decided. The family assets amounted to approximately £15 million.

The wife claimed that their assets should be shared equally, with a maintenance agreement or £40,000 per year for each of their three children. The husband argued that the assets should be split according to the terms of the pre-nuptial agreement, with a smaller maintenance payment

The Court ruled that the pre-nuptial agreement should bear weight and that the assets should be divided so as to give the wife a fund sufficient to provide maintenance of £100,000 per annum for life (£2.2 million), together with the assets she had introduced to the marriage and an additional sum (mainly for the purchase of a suitable property) of approximately £4 million.

Should you require any more information please contact: Susan Hughes on 01554 749144 or email directly susan.h@daviesparsonssolicitors.co.uk.

Posted by Peter Nicholas on Wednesday, January 18, 2012 at 03:26 PM

DPA Law Virtual Clinic Starts Next Monday 23rd Jan 2012

DPA Law Virtual Clinic Starts Next Monday 23 Jan 2012

Although we are contactable at anytime we are offering a bolt on Virtual Clinic service every Monday between 9-11 am via Facebook, twitter and LinkedIn. If you or anyone has a question they would like to ask a solicitor whether its a personal or a business legal matter we will do our best respond to your query in realtime.

Posted by Peter Nicholas on Monday, January 16, 2012 at 05:22 PM

Power of Attorney May Prevent a Money Dispute

Wrangle over funeral savings

Q. My sister put £2,000 of my mother's money - the money she put aside for her funeral - into an account in her own name because my mother has Alzheimer's. But my sister has died suddenly, and her husband has changed the account into his own name. He knows it's not his money but he won't release the cash.

A. Hopefully a formal solicitor's letter will make your brother-in-law see sense. Failing that, your mother could sue him for the return of her money, assuming there is evidence that the money belonged to her and wasn't, for example, a genuine gift. If she lacks the mental capacity to give instructions then the Official Solicitor's office (which exists to help with this type of situation) would be able to take legal action on her behalf. You should discuss with the solicitor the possibility of your mother drawing up a Lasting Power of Attorney so she can appoint someone trustworthy to look after her financial affairs.

Putting the house in order

Q. When my wife and I bought our house more than 30 years ago, only my name was put on the deeds. If I was to die first, would my wife have to have her name entered on the deeds? I have left the house to her in my will, and when she dies it will go to our only son. I have been told that to have her name put on the deeds would cost us £2,000.

A. It is not essential for you to transfer your home into joint names but there are several reasons why it may be a good idea. To mention just one, if your wife survives you to inherit a house in your sole name, your ex-ecutors will have to obtain probate of your will (which might not otherwise be needed) and then transfer the house to her. It will almost certainly be simpler and cheaper to put the house into joint names now so that the survivor inherits automatically. The cost should be between £250 and £500, depending on whether or not your title is already registered at the Land Registry.

Distant relative

Q. I have a bachelor uncle in his late 70s. I keep in touch but I cannot discuss personal issues such as, for example, whether he has made a will. As far as I know I am the only remaining member of his family and wonder how I will go about dealing with his property and affairs when something happens to him.

A. When your uncle dies you will have to search his house to see if you can locate a will. If there is a will and you are the executor it will be your responsibility to arrange the funeral. If there is no will then, as next of kin, it will be your job to arrange his funeral in any case, and it will be necessary for you, possibly with the help of a solicitor, to obtain authorisation from the Probate Registry to wind up your uncle's estate.

Trina Wilkins is solicitor for DPA Law specialising in Wills, Trusts & Contentious Probate.

If you require any legal advice in relation to a Power of Attorney or any contentious Probate matter, please contact Trina via email trina.w@daviesparsonssolicitors.co.uk or by telephone on 01554 749144

Posted by Peter Nicholas on Wednesday, January 11, 2012 at 10:53 AM

DPA Law LLP will be Exhibiting at The Regional Business Day

DPA Law LLP will be exhibiting at this year’s Regional Business Day on Thursday 23rd February 2012 at the Sinclair Suite in the Liberty Stadium, Swansea. The exhibition will take place between 9.30am – 3.30pm.

Please feel free to come and join us on the day. We will have qualified Solicitors on the stand to answer any questions or queries you may have.

We look forward to seeing you there.

Posted by Peter Nicholas on Thursday, January 05, 2012 at 11:22 AM

Small Firms: Successful Succession will help your Firm Succeed

While many people have set up and run their business for years, few have mastered the art of knowing when the time is right to sell the business or indeed to ensure that it can survive in the ab-sence of the original founding owner.

Without proper planning, clashing views and agendas can pull the company in several directions which can destroy an otherwise viable business.

With so much at stake, succession planning has to be a business priority and should be part of every business plan.

There are two main options available:

  • retention planning: retention of the business within the family circle, and
  • buy-sell planning: selling of the establishment to other business-owners or key employees or interested outsiders.

Succession plan

Planning the succession of a business is no different than any other type of business planning. The first step is to have a formal plan in place.

A plan should consider the following:

  • the options available regarding the business transference
  • the impact on the business/family
  • placing a value on the business
  • the timescale for the transition to the new ownership
  • the details in regard to the purchase/sale of the business
  • taxation/legal considerations
  • a process for dealing with any disputes.

In retention planning, special consideration must be given to the family: are family members inter-ested in and willing to work in the business, and who are the family members with the ability and skills to run the business?

Factors that should be taken into account when choosing a successor include people skills, com-mitment, professional education and their track record.

It is important that general information about the business such as the company's history, financial statements, key skills and knowledge, competitors, market share, key customers and contacts is obtained, as this can assist in the buying decision making process.

It must also be borne in mind that key information is often not documented or is not immediately identifiable, such as information the departing owner may be aware of regarding products or com-petitors.

Legal considerations and Tax

A succession plan should never be left until the last minute as it is a significant project and many aspects will require time to implement or to allow a smooth transition to the new owners.
Financial peace of mind is a crucial ingredient in a successful retirement of the owner or transfer of the business.

Financial planning for the business will have a direct effect on any estate. Careful consideration should be given to the estate and gift taxes associated with transferring a business interest to fam-ily members. A financial professional is instrumental in defining these pitfalls and helping minimise the possible transfer headaches.

Family businesses need to have legal issues carried out by professionals. It may seem like just more paperwork, but documents like shareholders' agreements are key to avoiding confusion.
A succession plan should also deal with the issue of the death or sudden illness of the business owner.

By proper planning, anxieties surrounding income and security for surviving family members and employees can be minimised. In this regard, a will is vital as, if carefully drafted, it will ensure that assets are transferred to the intended beneficiaries. It is also important that, having prepared the will, it is maintained and kept current.

Mike Davey, Solicitor for DPA Law says: “Without succession planning, a business that has be-come successful can just as easily fail. The passing of the baton from one generation to the next is often clouded by the family and stakeholders' differing views and agendas, as well as emotion”.

If you are a family run business and need assistance in relation to succession planning, DPA Law can advise you of all legal considerations. Please feel free to contact our business services de-partment by email mike.d@daviesparsonssolicitors.co.uk or by telephone on 01554 749144

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

Posted by Peter Nicholas on Tuesday, January 03, 2012 at 11:50 AM