News Archive for August, 2012

Umbrella Contracts/Continuity of Employment

 

When carers employed by a contractor were engaged under a zero hours contract, was it open to a tribunal to find they were employed under a global contract of employment, with continuity preserved throughout?

Yes, says the EAT in Pulse Healthcare v Carewatch Care.

In this case, the carers were employed by Carewatch Care Services Ltd, a company contracted to a PCT to provide care for a severely disabled individual. The contract was re-tendered and taken over by Pulse Healthcare. The carers asserted they had TUPE rights against the new contractor.

But as a preliminary point, it had to be established that the carers were employees and, for the purposes of any claims they might wish to make, whether they had continuous service.

The carers were given a zero hours contract. It stated there was no obligation to provide work and the employees were ostensibly free to work for another employer.

The employment tribunal found that the contract given to the carers did not reflect the true agreement between the parties. In practice they performed services, were obliged to carry out the work offered and had to do it personally. Finally, the argument that these were individual discrete contracts as opposed to a global umbrella arrangement did not stack up. Carewatch was providing a critical care package 'of a most challenging kind'. The employment tribunal described it as 'fanciful' to suppose that the employer relied only on ad hoc arrangements in the provision of such a service.

Therefore the employment judge was entitled to hold that the claimants were employed by Carewatch under global contracts of employment with full continuity. The issue of whether, as employees, they actually transferred to Pulse under TUPE was remitted to an employment tribunal for further deliberation.

The original article featured in Daniel Barnett’s Employment Law Mailing List. Daniel Barnett is a barrister in independent practice and his mailing list is available to subscribers. 
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 Thursday, August 09, 2012 at 02:16 PM

Chancel Repair Liability – Registration Requirement

A recent case in which the owners of a farm faced ruin because their property was saddled with an ancient responsibility to maintain the local church received a great deal of publicity, and has prompted a change in the applicable law.

So-called ‘chancel repair liabilities’ (CRLs) can attach to properties and have no impact on successive owners of those properties for centuries, only coming to light when a major refurbishment of the church becomes necessary.  The consequences can then be disastrous for the owner of the affected property.

It is normally possible to insure against the risk of a property carrying a CRL, but not against the cost of a CRL claim where a property is known to be at risk.

A change has now been made to the law and this will come into force on 13 October 2013. From that date, a CRL will have to be registered by way of a notice against the property title in order to be effective against a buyer of a property which is registered land.

This will mean that the prospective buyer of a property that is subject to a CRL will be warned of its existence when the usual property searches are done.

Posted by Peter Nicholas on Wednesday, August 08, 2012 at 12:31 PM

Maintenance Payments Should be Based on Need

Helpful guidance on the calculation of periodical payments (popularly known as maintenance payments) in a divorce settlement has been provided by a High Court judge in a recent case.

In deciding a contested claim for maintenance, Mr Justice Mostyn expressed the view that the law relating to property acquired during the marriage is ‘reasonably clear’.

However, the law relating to periodical payments is, by comparison, not so clear. He therefore gave his views on how these should be calculated, in the hope that this will result in more cases being settled out of court.

In the judge’s opinion, a claim for periodical payments should be settled by reference to the principle of need alone, although there should be some room for discretion in assessing those needs, which ‘are elastic in concept’.

His view is that the principle of sharing, which could give rise to additional maintenance over and above need, should not be applicable other than in the most exceptional circumstances.

For the judge, one vital distinction between the division of matrimonial property, where the sharing principle is commonly used so that there is equal division of assets between the couple, and the amount of maintenance to be paid is that by definition the matrimonial property has been acquired during the marriage whilst periodical payments would be met from post-divorce earnings.

It remains to be seen whether the judge’s guidance will be followed in future disputes, but any attempt to facilitate resolution of contested cases is to be welcomed.

Our experts can advise you on all aspects of family law. Contact us for advice.

Posted by Peter Nicholas on Wednesday, August 08, 2012 at 11:40 AM

Give and Take is Often Better Than All or Nothing

Arecent Court of Appeal case shows that mediation can often be a more beneficial way of resolving disputes than what Lord Justice Jackson referred to as ‘full blooded adversarial litigation’. The dispute in question arose between the leaseholders of two upmarket apartments in Eaton Mansions, London.

Hameed and Inam Faidi were the occupants and leaseholders of Flat 6. They, in common with all other leaseholders in the block, had covenanted in their lease to observe all regulations imposed for the management of the block.

One of these regulations was that the floors of each flat should be covered with carpet and underlay, except for the kitchen and bathrooms. Flat 8 was directly above the flat occupied by the Faidis, who complained that they were disturbed by noise from the tenants that would not have arisen had the floors of the flat been carpeted in accordance with the lease provisions.

The Faidis sought an injunction to require the leaseholders of Flat 8 to lay carpet over the expensive oak flooring and underfloor heating which had been installed in the apartment.

The leaseholders of Flat 8 were able to show that the landlord of the block had granted consent for various works to be carried out, including installation of the floors.

They argued that the grant of this licence waived the obligation to carpet the rooms, particularly as this was incompatible with installing wooden floors and underfloor heating.

The Court of first instance accepted this argument, as did the Court of Appeal.  Lord Justice Jackson pointed out that in bringing the case to court the outcome was always going to be an ‘all or nothing’ situation. Either the court would hold that the requirement to lay carpets had been waived by the licence or it would not, whereas a compromise between the parties (for example partial carpeting) might have been the best outcome.

If the parties had chosen mediation, a compromise might have been reached and much of the cost of the litigation, which amounted to more than £140,000, could have been saved.

Disputes between neighbours can become acrimonious unless handled with care.

We can help you reach an amicable solution, without court proceedings being brought unless it is absolutely necessary.

Posted by Peter Nicholas on Wednesday, August 01, 2012 at 09:32 AM

Redundancy and the Pool for Selection

In Halpin v Sandpiper Books Ltd., the Employment Appeal Tribunal (EAT) held that the Employment Tribunal (ET) had been correct to find that the pool for selection for redundancy could consist of only one person where he was the only person doing that job.Mr Halpin began working for Sandpiper Books Ltd. in 2007 as an administrator/analyst at its London office.

In 2008, the company decided to look into the prospect of selling books in the Chinese market and Mr Halpin, who had spent a year in China teaching English, was given the job of developing sales in that country.

However, Sandpiper Books subsequently decided that it would be preferable to outsource this work to a local agency and Mr Halpin’s role was at risk of redundancy.

For redundancy selection purposes, Mr Halpin was treated as being in a pool of one. Sandpiper Books consulted with him extensively and offered him alternative employment, but this was refused and he was made redundant.

He brought a claim for unfair dismissal but the ET was satisfied that there was a genuine redundancy situation and that he had been fairly selected for redundancy ‘in so far as he was in a pool of one given his unique position dealing solely with sales and based in China’.


Mr Halpin appealed on the basis that no reasonable employer would automatically limit the selection pool for redundancy to those whose work had itself diminished, but would include other workers with interchangeable skills.

The EAT dismissed the appeal. An ET is in error if it makes itself ‘the decision-maker as to pools’. The finding of the ET in this case as regards the employer’s decision to have a pool of one was not only open to the ET but was also a decision that it could not easily overturn. The decision was logical. Mr
Halpin was on his own working in China and this work had come to an end.

The ET had found no fault with the procedure adopted by the management of the company, so it would not have been correct for it to interfere with any of the decisions that caused Mr Halpin’s redundancy.

When contemplating making job cuts, employers should always give careful consideration to the composition of the pool of those at risk of redundancy but, as this case shows, there are circumstances where the redundant post is in fact unique and the pool will consist of the job holder alone.

Contact us for advice on any employment law matter.

Posted by Peter Nicholas on Wednesday, August 01, 2012 at 09:20 AM