News Archive for October, 2012

DON’T LET A CHEAP ONLINE DIVORCE COME BACK TO HAUNT YOU…………………….

Whilst the online divorce package may appear a quick and cheap alternative it could end up costing you considerably more in the long term and not only on legal fees.  The consequences could haunt you into the future.

It is a common misconception that upon grant of a decree absolute of divorce all ties with a spouse come to an end.    This is not correct.   Unless a Financial Order is entered into and approved by the Court then the financial claims that you and your spouse have against each other for spousal maintenance, assets, monies, property and pension can be claimed at any time even after decree absolute and not only upon assets acquired during the marriage or prior to marriage but also upon assets acquired after decree absolute.     For example, the purchase of a new home, inheritance, lottery win etc. are all open to potential claims.

It is therefore important that specialist legal advice is obtained at the time of the divorce to ensure that you are protected against any future claims.

At DPA Law we have a specialist team of family lawyers who will advise you fully based on your particular circumstances.

So don’t just go for the cheap option – go for the specialist advice and protect your future.

Contact Susan Hughes on 01554 749144 or email susan.h@dpalaw.co.uk

Posted by Peter Nicholas on Wednesday, October 31, 2012 at 03:48 PM

Estate Admin Banking Protocol

Dealing with the death of a relative is stressful enough, without the added stress of a long drawn out winding-up of an estate. Well, a new protocol just agreed will help reduce that stress level somewhat, and speed things up. 

According to Anthony Davies, senior partner and head of probate and estate administration at DPA Law, “The major Banks, the Law Society and the Society of Trust and Estate Practitioners have agreed a new procedure to ease the burden on family members who suffer bereavement.”

The protocol covers the different administrative procedures used by banks and building societies for releasing assets held by deceased customers. It has been signed by the British Bankers Association on behalf of Barclays, HSBC, Lloyds, Halifax, RBS and Natwest, and covers current, savings, credit card and unsecured loan accounts.

Anthony comments: “The last thing grieving relatives want is delay or hassle. This new protocol should smooth things out and speed things up.”

If you feel you may need advice, call Anthony Davies or Trina Wilkins on 01554 749144 for further information, or send an e-mail to Trina.W@dpalaw.co.uk .

Posted by Peter Nicholas on Wednesday, October 31, 2012 at 01:37 PM

Planning for illness and the end of life

Recent coverage regarding doctors' reluctance to honour the wishes of very ill elderly patients, when their patients have asked for non-resuscitation, has brought into focus the need to plan ahead if you want medical practitioners, family and friends to respect your wishes.

There are two ways in which you can plan for this (apart from completing a non-resuscitation form from your doctor or in hospital) namely: making an advance directive (or so-called 'living will'); or making a health and welfare lasting power of attorney.

An advance directive allows you to draw up guidance regarding your health care and treatment.

This contains direct instructions by you to health professionals and should be recorded on your medical record with copies also given to your nearest and dearest A health and welfare lasting power of attorney, on the other hand, involves appointing someone else you trust as your advocate who can act on your behalf to make decisions in relation to your health care and treatment if you become unable to make those decisions yourself. This can include giving your attorney power to give or refuse consent to life-sustaining treatment on your behalf if you wish.

Many people are more familiar with the lasting power of attorney for property and affairs which enables you to appoint someone to look after and make decisions in relation to their financial affairs on their Doctors' reluctance to honour the wishes of very ill elderly patients, when their patients have asked for non-resuscitation, behalf. This is in a similar form but does not extend to decisions in relation to health and welfare matters.

One of the difficulties with advance directives is that if they are not reviewed regularly your wishes may be considered to be out of date at the very moment when you need them to be exercised. If you decide upon an advance directive it is, therefore, important to review this from time to time and possibly re-sign it to confirm your wishes and instructions remain current. has brought into focus the need to plan ahead if you want medical practitioners, family and friends to respect your wishes it is, of course, always important to ensure that family members, friends and medical practitioners are aware of your arrangements - if you do not tell people what you have done, they cannot carry out your wishes.

Contact DPA Law for expert legal advice.

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, October 30, 2012 at 01:51 PM

A DRESS AND APPEARANCE POLICY TO CREATE THE RIGHT IMPRESSION

Whilst employers want their employees to dress appropriately, to project a good image for the business, the dress code must not be unreasonable or place unnecessarily restrictive demands on employees.

BE OBJECTIVE ON ATTIRE

A dress code must be reasonable i.e. not purely subjective based on your own particular tastes and preferences. It would be reasonable, for example, to relax the dress code in situations where employees do not come into contact with customers or clients: the important point is requiring employees to dress in a manner appropriate to their role, as well as the needs of the business, and taking into account health and safety and hygiene requirements and standards.

AD-DRESS POTENTIAL FOR DISCRIMINATION

Whilst there is no law that specifically deals with dress codes, in some cases rules on dress and appearance may constitute direct or indirect discrimination on the grounds of sex, race or religion or belief. For example, an employer could fall foul of the law if they insisted that women employees must wear skirts, or that Sikh employees cannot wear turbans and must cut their hair short.

If the particular rule is clearly linked to health and safety or hygiene, there should not be a problem but otherwise employers must take care not to insist on dress codes that conflict with cultural or religious requirements of certain ethnic or religious groups, or which stereotype men and women.

This does not mean that male employees can turn up for work in makeup and high heels (although be aware of the gender reassignment provisions!), but you do need to ensure your dress code is even-handed in a general sense. In other words, make sure the rules as a whole apply the same standards of smartness or conventionality to men and women. Getting the right policy relating to the dress and appearance of employees is imperative in achieving this aim.

Contact DPA Law if you require any advice or assistance in connection with your businesses dress and appearance policy.

Posted by Peter Nicholas on Tuesday, October 30, 2012 at 11:36 AM

Cohabitant Denied Fatal Accident Act Claim

The weaker position of cohabitants, compared with surviving spouses and civil partners, in claims  brought under the Fatal Accidents Act 1976 (FAA), was highlighted in a recent High Court case.

In July 2008, 28-year-old Alan Winters was killed at work whilst attempting to remove a four-ton crate from a shipping container. His employer, Davey Markham Ltd., was subsequently found by the Health and Safety Executive not to have carried out a proper risk assessment for the task and was fined more than £33,000.

At the time of his fatal accident, Mr Winters was living with his partner, Laurie Swift, and her daughter in a home into which they had recently moved. Ms Swift was expecting the couple’s first child, and their baby son was born six weeks after his father’s death.

Following Mr Winters’ death, a successful claim against Davey Markham Ltd. was brought under the FAA on behalf of the couple’s son. Ms Swift also sought to bring a similar claim, assessed as being worth more than £400,000.

Under the FAA, certain family members of a deceased person have the ability to claim against the person who has caused the death of their relative by ‘wrongful act, neglect or default’. Davey Markham Ltd. had accepted responsibility for Mr Winters’ death.

The categories of persons able to claim under the FAA include the survivor of a couple living together as ‘husband and wife’. However, under the FAA provisions, a cohabitant can only bring a claim if the couple have been living together for two years or more prior to the death.

Mr Winters and Ms Swift had been living together for just six months at the time of his accident and thus Ms Swift was unable to bring a claim.  Ms Swift challenged the two-year time constraint in the FAA in the High Court, relying on the European Convention on Human Rights. Ms Swift’s lawyers argued that the relevant FAA provisions were contrary to Article 8 of the Convention, which sets out an individual’s right to respect for his or her family and private life, and contrary to Article 14, which provides that an individual’s rights under the Convention shall be secured ‘without discrimination on any ground’.

The judge dismissed Ms Swift’s claim on both grounds,vhowever, commenting that he could see no direct and immediate link between her rights under the FAA and her right to respect for her family and private life under the Convention.

However, in delivering his judgment, the judge expressed sympathy for Ms Swift’s position, saying that her frustration and sense of injustice were understandable, particularly in the light of recent proposed reforms to the FAA which would have allowed her to bring a claim. 

We may be able to help you achieve compensation if a family member is killed or injured due to the negligence of another. Contact us for advice.

Posted by Peter Nicholas on Tuesday, October 30, 2012 at 11:20 AM

Bankrupt Cannot Secure Pension Benefits

A bankrupt who is entitled to obtain a pension simply by asking for it cannot seek to have it protected from his creditors, the High Court ruled recently.

The bankrupt had a pension policy which he was entitled to take, but he had chosen not to do so because the payments would have constituted income from which his creditors could seek to be repaid.

The Court could not accept a situation whereby a person who opted to take their pension the day before they were made bankrupt could have their pension income taken by their trustee in bankruptcy, whereas a person who could so elect, but had declined to do so, could not.

Such an anomaly was clearly not the policy of Parliament when the relevant legislation was drafted.

If you are concerned about your financial position, take advice as early as possible.

Posted by Peter Nicholas on Tuesday, October 30, 2012 at 11:13 AM

Supreme Court Rules That Daughter Cannot Claim Tenancy

The Supreme Court has ruled that a daughter cannot succeed to a tenancy after the death of her mother because the right of succession belongs to her estranged father.

The woman’s parents became tenants in 1967 and the freehold of the property they rented was transferred to the local authority in 1980. Shortly after that, they became secure tenants of the authority. Their daughter lived with them in the property.

In 1980, the father left and the mother and daughter remained, continuing to rent the property until the mother’s death in 2007. The father had never been removed from the tenancy, so it devolved to him by operation of common law. The local authority therefore served a notice to quit on him and began proceedings against the daughter for possession of the property.

She argued that the Housing Act 1985 operated so that the tenancy vested in her, not her father. The case was appealed all the way to the Supreme Court.

The basis of the woman’s argument was that the 1985 Act gives someone in her position the right to the tenancy where:

  •  the secure tenant dies;
  •  the secure tenant is not a ‘successor’ to another tenant who predeceased them;
  • the tenancy is a ‘periodic tenancy’; and
  •  the person claiming the tenancy has occupied the premises as their principal or only home for the 12-monthperiod ending with the death of the secure tenant.

However, the Court concluded (by a majority of 3 to 2) that the woman’s father had succeeded to the tenancy by operation of common law and was therefore the sole tenant.

Since he did not occupy the property, there was no longer anyone occupying the property as a principal or only residence.  Whilst the father could claim the property by returning to it and using it as his residence, the daughter did not have that right.

If you are concerned about your rights as a tenant under a secure or other form of tenancy, contact us for advice.

Posted by Peter Nicholas on Tuesday, October 30, 2012 at 11:05 AM

Community Care

With costs rising and government funding being cut, councils are increasingly seeking to make savings in their care budgets – and for elderly disabled people, this can mean substantial increases in the contributions they are required to make towards the care they receive.

When a council wishes to reassess the amount of financial support it provides in the way of personal budgets to its clients, it will follow a procedure called
a resource allocation system (RAS). In a RAS, ‘points’ are awarded depending on the level of ‘eligible needs’ for which care is required.

Only when an assessment of eligible needs has been made can the council consider whether the needs are such that it is necessary for it to make arrangements to provide services.

At this point, the council’s budgetary constraints do come into play, and where the council provides a direct payment to the disabled person, it is allowed to consider whether or not the cost of securing the services for which it is paying is reasonable based on available resources. It may then seek to reduce the support given.

If you are faced with a cut in your support from the council for social care and are concerned that a proper assessment procedure has not been carried out, contact us for advice on how to challenge the decision.

Posted by Peter Nicholas on Monday, October 29, 2012 at 11:01 AM

Employees Who Fall Sick Whilst on Annual Leave

On more than one occasion, the European Court of Justice (ECJ) has said that the purpose of the entitlement to paid annual leave is to enable a worker to rest and to enjoy a period of relaxation and leisure, whereas the purpose of the entitlement to sick leave is to enable a worker to recover from illness.

This point was reiterated in a further case, referred to the ECJ by the Spanish Courts, concerning sickness during annual leave (Asociación Nacional de Grandes Empresas de Distribución v Federación de Asociaciones Sindicales and Others).

The ECJ ruled that a worker is entitled to take paid annual leave which coincides with a period of sick leave at a later date, irrespective of the point at which the incapacity for work arose. A worker who becomes incapacitated due to sickness whilst absent on holiday can therefore take the affected period of leave at a different time.

The decision goes further than the earlier ruling in Pereda v Madrid Movilidad SA, in which the ECJ ruled that a worker who suffered an accident at work, with the result that he was on sick leave for most of the annual leave period allocated to him, had the right, on request, to reschedule his holiday, even if that meant carrying it forward to the following leave year.

The ECJ held that the point at which the illness arises is irrelevant. In its view, it would be ‘arbitrary and contrary to the purpose of entitlement to paid annual leave’ to grant workers the right to reschedule the leave only if they are already unfit for work when the period of paid annual leave commences.

The Government is currently reviewing the Working Time Regulations 1998 in order to update them to take account of European case law on the correct interpretation of the Working Time Directive, on which they are based.

Contact us for advice on any employment law matter.

Posted by Peter Nicholas on Monday, October 29, 2012 at 10:56 AM

Agreement Set Aside When Only One Side Meets Obligations

When two young men who were friends and sometime business associates decided to buy a flat together in 1997, they arranged it so that the property was registered in the name of the one who had paid the larger share of the deposit. He took out a mortgage and the arrangement was that his friend would carry a somewhat larger share of the incidental costs, so they expressly agreed that they would own the property in equal shares.

The second man did not, however, make a greater contribution towards the running costs and, indeed, over time he paid less than his friend. The two men fell out in 2008. When the property came to be sold, they had different views as to how the proceeds should be split.

The question for the court was in what proportions was the flat (now worth considerably more than the £188,000 purchase price) owned?

When the lower court found that the agreement between the two men that the flat should be owned equally overrode the evidence that their contributions to the costs of ownership were far from equal, an appeal was almost inevitable.

In the Court of Appeal, Lady Justice Arden concluded, “In my judgment, the agreement did not apply in the events which unfolded. It only covered the case where there was a slight imbalance in contributions.”

In the Court’s view, the 50:50 agreement was predicated on the second man paying a greater share of the ongoing expenses and was no longer valid when this did not occur.

The agreement had to be considered as a whole, and whereas one of the men had met his obligations under it, the other had not. It could not therefore be considered to be enforceable. The Court ruled that a 75:25 split was appropriate.

If you are buying a property with someone else, it is wise to get your rights and obligations agreed in advance in a proper manner. Contact us for advice.

Posted by Peter Nicholas on Monday, October 29, 2012 at 10:44 AM

New Minimum Wage Rates – A Reminder

Employers are reminded that the adult hourly rate of the National Minimum Wage increased from £6.08 to £6.19 on 1 October 2012.

The development rate (which covers workers aged 18-20 years) remains at £4.98 and the rate for workers aged 16 and 17 stays at £3.68.
The apprentice rate, for apprentices under 19 or those aged 19 or over and in the first year of their apprenticeship, increased from £2.60 to £2.65 per hour.

Also from 1 October 2012, the accommodation offset increased from £4.73 per day to £4.82.

Posted by Peter Nicholas on Monday, October 29, 2012 at 10:40 AM

Equal pay claims in the Civil Courts

Can an employee bring an equal pay claim in the civil courts rather than the employment tribunal, even if that means them circumventing the time limit for bringing tribunal proceedings?

Yes, says the Supreme Court in Birmingham City Council v Abdulla.

A large group of female workers had claims against Birmingham City Council for breach of the provisions of the Equal Pay Act 1970 (now part of the Equality Act 2010). Normally such claims would be brought in the employment tribunal, but the time limit for bringing claims before the tribunal is six months after the employment has finished and these employees were all over the time limit. They therefore brought their claims in the High Court in order to take advantage of the normal civil court time limit of six years.

Birmingham sought to have the claims struck out under section 2(3) of the Equal Pay Act, which allows cases to be struck out where the court considers that the claims "could more conveniently be disposed of separately by an employment tribunal". This would have had the effect of ending the claims, which were out of time for a tribunal.

Lord Wilson, with Lady Hale and Lord Reed, decided that since the effect of striking the cases out would mean that the claims died then it could not be said that the claims could be "more conveniently disposed of" in a tribunal. Parliament had allowed these claims to be brought in the civil courts as well as in the tribunal and so must have accepted that the normal six year time limit could apply to them. Lord Sumption and Lord Carnwath dissented, on the basis that such an approach would frustrate the policy underlying the limitation provisions of the Equal Pay Act.

The majority went on to suggest that Parliament should consider relaxing the strict six month limitation period for employment tribunal equal pay claims, and warned that (1) Claimants who were found to have deliberately delayed bringing tribunal proceedings in order to gain an "illegitimate advantage" by bringing court proceedings risked having their claims struck out under the general rules on abuse of process, and (2) if a court decided that an individual should reasonably have presented a claim in time to the employment tribunal, this was something it could take into account in awarding costs.

DPA Law act for employers and employees. Contact us if you require legal advice concerning any aspect of employment law.  
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.

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 via email by subscription or via his mailing list archive online at: www.danielbarnettemploymentlaw.co.uk

Posted by Peter Nicholas on Friday, October 26, 2012 at 11:34 AM

Guidance for Employers on Maternity Rights and Redundancy

The Advisory, Conciliation and Arbitration Service (ACAS), in partnership with the Equality and Human Rights Commission, has published new guidance to help employers understand the rights of women who are pregnant or on maternity leave when workplace redundancies are necessary.

The need for better understanding of this area of employment law is illustrated by the fact that the ACAS helpline receives more than 15,000 calls a year on the subject and that there were 1,900 claims lodged at the Employment Tribunal in 2011/2012 that related to unfair dismissal or detriment related to pregnancy or maternity leave.

The guidance contains a useful check list for managing the process fairly and sets out the law that applies if you are reorganising and/or need to make employees redundant and this includes someone who is pregnant or on maternity leave. It gives advice, including examples and useful dosand don’ts, on how to manage the situation correctly, including:

  •  checking that the redundancy is genuine and necessary;
  •  ensuring you consult and keep in touch;
  •  establishing non-discriminatory selection criteria; and
  •  considering alternative work.

There is also a ‘mythbusting’ section, which contains key facts on managing pregnancy and maternity at work.

The guidance, ‘Managing redundancy for pregnant employees or those on maternity leave’, is available on the ACAS website at www.acas.org.uk. 

If you are contemplating making redundancies and would like individual advice on managing the process, we can help you.

Posted by Peter Nicholas on Friday, October 26, 2012 at 11:14 AM

Unfair Will Overturned by Court of Appeal

When a Yorkshire farmer disinherited his son and left the whole of his estate to his daughter, the son challenged the will in court. The son had worked with his father for many years and contended that his father had promised that he would inherit his estate.

As well as the farm, the deceased owned other property and had £150,000 in cash, all of which was bequeathed to his daughter. The will empowered her to transfer the farm to her brother if she considered him to be capable of running it, and left that decision to her absolute discretion.

The farming activity had ceased some time ago, with the land being let out to a neighbouring farmer. The argument turned on whether the promises made to the son and the contribution made by him to running the business were sufficient to justify his claim to the estate or whether, as his sister claimed, his accession to the farm was entirely at her discretion.

The High Court ruled that the son was entitled to the farmland, the farming assets (excluding cash) and a house in which to live. The other assets would
belong to his sister.

The sister appealed the decision and the Court of Appeal has now upheld the original judgment.

We can advise you on any will or probate matter.

Posted by Peter Nicholas on Friday, October 26, 2012 at 11:10 AM

Unfair Will Overturned by Court of Appeal

When a Yorkshire farmer disinherited his son and left the whole of his estate to his daughter, the son challenged the will in court. The son had worked with his father for many years and contended that his father had promised that he would inherit his estate.

As well as the farm, the deceased owned other property and had £150,000 in cash, all of which was bequeathed to his daughter. The will empowered her to transfer the farm to her brother if she considered him to be capable of running it, and left that decision to her absolute discretion.

The farming activity had ceased some time ago, with the land being let out to a neighbouring farmer. The argument turned on whether the promises made to the son and the contribution made by him to running the business were sufficient to justify his claim to the estate or whether, as his sister claimed, his accession to the farm was entirely at her discretion.

The High Court ruled that the son was entitled to the farmland, the farming assets (excluding cash) and a house in which to live. The other assets would
belong to his sister.

The sister appealed the decision and the Court of Appeal has now upheld the original judgment.

We can advise you on any will or probate matter.

Posted by Peter Nicholas on Friday, October 26, 2012 at 11:10 AM

Unfair Will Overturned by Court of Appeal

When a Yorkshire farmer disinherited his son and left the whole of his estate to his daughter, the son challenged the will in court. The son had worked with his father for many years and contended that his father had promised that he would inherit his estate.

As well as the farm, the deceased owned other property and had £150,000 in cash, all of which was bequeathed to his daughter. The will empowered her to transfer the farm to her brother if she considered him to be capable of running it, and left that decision to her absolute discretion.

The farming activity had ceased some time ago, with the land being let out to a neighbouring farmer. The argument turned on whether the promises made to the son and the contribution made by him to running the business were sufficient to justify his claim to the estate or whether, as his sister claimed, his accession to the farm was entirely at her discretion.

The High Court ruled that the son was entitled to the farmland, the farming assets (excluding cash) and a house in which to live. The other assets would
belong to his sister.

The sister appealed the decision and the Court of Appeal has now upheld the original judgment.

We can advise you on any will or probate matter.

Posted by Peter Nicholas on Friday, October 26, 2012 at 11:10 AM

Maths Teacher’s Unfair Dismissal Claim Must Be Reheard

A maths teacher who brought claims for wrongful and unfair dismissal after she was dismissed for allegedly assaulting a pupil has won the right to have her case reheard after the Employment Appeal Tribunal (EAT) ruled that the Employment Tribunal (ET) had made serious errors in its factual findings (Boardman v Nugent Care Society and Another).

Mrs Zainab Boardman was employed by a charitable organisation which runs Clarence High School, an independent school in Formby for secondary pupils with educational, behavioural and emotional difficulties. She was the longest-serving teacher at the school, having worked there for 13 years teaching mathematics.

On 31 July 2008, Mrs Boardman was summarily dismissed for gross misconduct, namely assaulting a pupil on 1 February that year. She strongly denied the allegation and contended that the incident had been inadequately investigated, that the disciplinary procedure was unfair and that no reasonable employer would have taken the decision to dismiss her.

The ET dismissed her claims in a majority decision, ruling that a teaching assistant who gave evidence that was central to the case was a more credible witness than Mrs Boardman.  Mrs Boardman appealed against the ET’s decision.

The EAT found that the ET had erred in reaching the findings of fact that it had with regard to critical issues. It had arrived at its conclusions on the mistaken assumption that several important elements of what Mrs Boardman was alleged to have done were not in dispute. This had necessarily impacted on the ET’s approach to her credibility and to the findings it made in this regard.

As a result, the ET’s findings were unsustainable.  Accordingly, the appeal was allowed and the case was remitted for rehearing by a freshly constituted ET.

Contact us if you would like advice on the conduct of disciplinary or dismissal proceedings.

Posted by Peter Nicholas on Friday, October 26, 2012 at 10:59 AM

CONTROLS OVER BUSINESS AND COMPANY NAMES

By use of a particular name in connection with a business or profession, whether the name is that of the user or is an adopted name, a right to prevent another person from using that name in a manner liable to cause confusion in the mind of the public may be acquired.

The basis of this right of action is the passing-off by the defendant of his goods or business as being the plaintiff’s goods or business, which injures a right of property of the plaintiff, that right of property not being in the name or description of the goods or a business, but being the right to the goodwill of the business.

Accordingly an individual may be restrained by injunction from using his own name in relation to goods or a business in such manner as in fact to represent them as being the goods or a business of another, even though the use of the name is an honest use, not intended to deceive.

If a company is being formed or a business name is being used, the choice of the name is subject to statutory restriction against registration or use of certain names. The Companies Act 2006 imposes controls on the use of certain descriptions and terms in business names.
The Act prohibits the use, without the approval of the Secretary of State, of:
(a) a name which would be likely to give the impression that the business is connected with Her Majesty's government, with any part of the Scottish administration, with any local authority or with any public authority specified in regulations made under the Act;
(b) a name including a word or expression specified in regulations made under the Act;
(c) a name including a word or expression or other indication that is associated with a particular type of company or form of organisation specified in regulations made under the Act; or
(d) a name that gives so misleading an indication of the of the nature of the activities of the business as to be likely to cause harm to the public.
In the case of individuals and partnerships, specified details are required to appear on business letters, orders, invoices, receipts and demands for payments of debts. A notice must be displayed in any premises where the business is carried on and to which customers have access. Failure to comply with these requirements is an offence. Breach of these requirements may give other parties a defence to a claim for breach of contract in certain circumstances.
Aside from the Statutory restrictions, valid registration of a trade mark confers on the proprietor the right to prevent others using the mark, or a mark resembling it, in respect of goods for which it is registered.
Contact DPA Law if you are an existing or new business and require legal advice.
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, October 23, 2012 at 03:54 PM

CONTROLS OVER BUSINESS AND COMPANY NAMES

By use of a particular name in connection with a business or profession, whether the name is that of the user or is an adopted name, a right to prevent another person from using that name in a manner liable to cause confusion in the mind of the public may be acquired.

The basis of this right of action is the passing-off by the defendant of his goods or business as being the plaintiff’s goods or business, which injures a right of property of the plaintiff, that right of property not being in the name or description of the goods or a business, but being the right to the goodwill of the business.

Accordingly an individual may be restrained by injunction from using his own name in relation to goods or a business in such manner as in fact to represent them as being the goods or a business of another, even though the use of the name is an honest use, not intended to deceive.

If a company is being formed or a business name is being used, the choice of the name is subject to statutory restriction against registration or use of certain names. The Companies Act 2006 imposes controls on the use of certain descriptions and terms in business names.
The Act prohibits the use, without the approval of the Secretary of State, of:
(a) a name which would be likely to give the impression that the business is connected with Her Majesty's government, with any part of the Scottish administration, with any local authority or with any public authority specified in regulations made under the Act;
(b) a name including a word or expression specified in regulations made under the Act;
(c) a name including a word or expression or other indication that is associated with a particular type of company or form of organisation specified in regulations made under the Act; or
(d) a name that gives so misleading an indication of the of the nature of the activities of the business as to be likely to cause harm to the public.
In the case of individuals and partnerships, specified details are required to appear on business letters, orders, invoices, receipts and demands for payments of debts. A notice must be displayed in any premises where the business is carried on and to which customers have access. Failure to comply with these requirements is an offence. Breach of these requirements may give other parties a defence to a claim for breach of contract in certain circumstances.
Aside from the Statutory restrictions, valid registration of a trade mark confers on the proprietor the right to prevent others using the mark, or a mark resembling it, in respect of goods for which it is registered.
Contact DPA Law if you are an existing or new business and require legal advice.
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, October 23, 2012 at 03:54 PM

DPA Law Offers New Family PAYG Scheme

DPA OFFERS NEW FAMILY PAYG SCHEME

Drastic cuts in government budgets mean that few will qualify for Legal Aid.   Most hard working families are not eligible.   If you need legal advice on any family matter but have a budget to work to then DPA FAMILY LAW SUPPORT could be the perfect way forward for you as it puts you in control of your case and costs

DPA FAMILY LAW SUPPORT works on the basis that you have full conduct of your matter and consult us only when you need advice to progress your case.  There are no hidden costs.   You pay only for the actual time that you spend with us having specialist family law advice specific to your case.

To find out more about the scheme contact Susan Hughes on 01554 749144 or email susan.h@dpalaw.co.uk

Posted by Peter Nicholas on Monday, October 22, 2012 at 03:58 PM

Employment Law Reforms

As part of its ongoing Employment Law Review programme, the Government has announced a package of reforms for consultation entitled ‘Ending the Employment Relationship’.

This includes:

  • a consultation on how settlement agreements, a simplified form of compromise agreement for use when employers wish to negotiate a termination package with an employee without there being any dispute between them, will work in practice. Under the proposals, employers would be legally protected from any offer they make during the negotiations being used as evidence in an unfair dismissal case. The consultation provides a template letter and guidance on how employers and employees would reach agreement. The Advisory, Conciliation and Arbitration Service (ACAS) has also agreed to provide a new statutory Code of Practice on settlement agreements; and
  • a consultation on the potential for reducing the compensation cap, currently set at £72,300, in unfair dismissal cases. The two proposals are a cap of up to 12 months’ pay and a new, reduced upper limit .  In addition, following Mr Justice Underhill’s review of the Employment Tribunal Rules of Procedure, which looked at ways of streamlining and improving understanding of the Employment Tribunal process, a consultation has been launched which includes proposals on how judges could dismiss weak cases more easily and reduce the number of preliminary hearings.

 

The consultations can be found at www.bis.gov.uk/Consultations. The last date for responses is 23 November 2012.

The Government has also published a summary of the responses it received to its call for evidence on changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 and has made a commitment to consult on the issues raised by the end of the year.

The responses can be found on the website of the Department for Business, Innovation and Skills. See www.bis.gov.uk/publications.

Lastly, the Government has said that it does not intend to proceed with the proposal for the introduction of ‘no fault’ dismissal, which was put forward in a report commissioned from venture capitalist Adrian Beecroft in May this year. Instead, the Government will work with ACAS to improve guidance for small businesses on the statutory Code of Practice on discipline and grievance.

Posted by Peter Nicholas on Monday, October 22, 2012 at 02:39 PM

Private Residence Election Requires Factual Basis

When a couple inherited a house from the deceased parent of one of them, they decided that they did not wish to retain it in the long term and subsequently put it on the market.  The week before the property was sold, they sent an election to HM Revenue and Customs (HMRC) to have it treated as their principal private residence.

The effect of the election, if successful, would have been to eliminate the charge to Capital Gains Tax on the difference between the net sale proceeds of the house and its value when it was inherited.

However, HMRC rejected the election. The prime reason for doing so was that the couple had not assembled reasonable evidence to substantiate their claim that the property had been their residence.

It was established that, as a matter of fact, they had never moved into the property. Nor could they demonstrate any periods of residence in the house, which was only six miles away from their own home.

The moral of the story is that where a principal private residence election is to be made, evidence should be assembled to support it and establish that there is a factual basis (demonstrated occupation as a residence) for the claim.

Posted by Peter Nicholas on Monday, October 22, 2012 at 02:21 PM

Upset Not Sufficient Reason to Deny Contact

When a mother recently sought to stop her estranged ex-partner (who had been granted shared parental responsibility over their children) from seeing their two daughters because she found it ‘too upsetting’, the Court of Appeal was unsympathetic.

The mother had made a number of accusations against her ex-partner, saying that he had abused her, only one of which (that he had spat at her) was proven.

However, he had been arrested on several occasions for breaking a non-molestation order which had been made.

The family court had ruled that the children’s father could communicate with them in writing but could not see them.  He appealed against this decision.

The Court of Appeal found that there was insufficient evidence that a no contact order was justified but decided that future contact should take place under the supervision of a court appointed guardian.

For advice on all family law matters, contact us.

Posted by Peter Nicholas on Monday, October 22, 2012 at 02:18 PM

Ex-Wife Responsible for Own Financial Arrangements

The courts have recently been asked to rule in a case in which the ex-wife of a wealthy businessman sought an increase in the financial provision she should receive from her ex-husband following their divorce.

She had received a lump sum divorce settlement of almost £1 million as well as periodical payments for three years. She later rearranged her affairs, taking out a mortgage on her property for £100,000 and using the money to buy an investment bond, interest on which was rolled up over the term rather than paid as it arose.

She subsequently applied to the court to be awarded a capital sum instead of the periodical payments she was due to receive. In her submissions, she claimed that her expenses included the cost of repaying the mortgage, but she did not include any income from the bond.  The district judge awarded her a further £456,000. Her ex-husband challenged the decision.

Among other objections to the judge’s calculations, he argued that remortgaging the house and using the £100,000 to buy the bond was solely his ex-wife’s decision and the judge’s calculations, which included £500 per month to cover payment of the mortgage, were therefore in error.  The Court of Appeal agreed.

If your ex-spouse seems intent on manipulating their financial position in order to make further claims on you, us for advice on the best way to proceed.

Posted by Peter Nicholas on Monday, October 22, 2012 at 02:13 PM

Worker Who Misused Employer’s Taxi Account Loses Unfair Dismissal Claim

Apostman who was dismissed by Royal Mail Group Ltd. after running up bills for almost £2,500 on the company’s taxi account has failed in an unfair dismissal claim (McCafferty v Royal Mail Group Ltd.).

Thomas McCafferty was dismissed for gross misconduct after charging taxis to the company’s account on 87 occasions. He had only been granted permission to use the account on occasions when he was asked to work on what would otherwise have been rest days.

His employer dismissed Mr McCafferty for gross misconduct after concluding that he knew that he was not permitted to use the account without authorisation.

By a majority decision, the Employment Tribunal (ET) ruled that the dismissal had been fair. The lay members of the ET were of the view that the decision to dismiss was within the band of reasonable responses open to the employer in the circumstances.

Royal Mail Group Ltd. had conducted a reasonable investigation and had reasonable grounds for believing that Mr McCafferty had tried to conceal his unauthorised use of the taxi account.

The Employment Judge dissented, being of the view that the dismissal was unfair. She contended that Mr McCafferty’s long service, clean disciplinary record and the option of a lesser sanction were required to be put in the balance and outweighed the other factors.

Mr McCafferty appealed against the ET’s decision. The Employment Appeal Tribunal was satisfied, however, that there was clearly evidence which entitled the majority to conclude that Royal Mail Group had reasonable grounds for their belief that he had not only knowingly used the company’s taxi account without authority but had also tried to conceal from management the fact that he had done so.

Lady Smith went on to say that this was an example of a case in which the lay members of the ET, having drawn on their valuable ‘common sense’ and knowledge of what any employee could be expected to know, had reached a different conclusion on the facts of the case from that of the Employment Judge.

Had the case been heard by an Employment Judge sitting alone, as is now permissible following the introduction of the Employment Tribunals Act 1996 (Tribunal Composition) Order 2012, the outcome would have been different.

In Lady Smith’s opinion, this illustrated the value of having lay members included in the decision-making process when hearing claims for unfair dismissal, as opposed to Employment Judges sitting alone.

The change in procedures whereby such cases can be heard by an Employment Judge sitting alone means that it is critical that employers present as much evidence as possible of the reasonableness of their actions – based on ‘real world’ experience.

Posted by Peter Nicholas on Monday, October 22, 2012 at 02:06 PM

Worker Who Misused Employer’s Taxi Account Loses Unfair Dismissal Claim

Apostman who was dismissed by Royal Mail Group Ltd. after running up bills for almost £2,500 on the company’s taxi account has failed in an unfair dismissal claim (McCafferty v Royal Mail Group Ltd.).

Thomas McCafferty was dismissed for gross misconduct after charging taxis to the company’s account on 87 occasions. He had only been granted permission to use the account on occasions when he was asked to work on what would otherwise have been rest days.

His employer dismissed Mr McCafferty for gross misconduct after concluding that he knew that he was not permitted to use the account without authorisation.

By a majority decision, the Employment Tribunal (ET) ruled that the dismissal had been fair. The lay members of the ET were of the view that the decision to dismiss was within the band of reasonable responses open to the employer in the circumstances.

Royal Mail Group Ltd. had conducted a reasonable investigation and had reasonable grounds for believing that Mr McCafferty had tried to conceal his unauthorised use of the taxi account.

The Employment Judge dissented, being of the view that the dismissal was unfair. She contended that Mr McCafferty’s long service, clean disciplinary record and the option of a lesser sanction were required to be put in the balance and outweighed the other factors.

Mr McCafferty appealed against the ET’s decision. The Employment Appeal Tribunal was satisfied, however, that there was clearly evidence which entitled the majority to conclude that Royal Mail Group had reasonable grounds for their belief that he had not only knowingly used the company’s taxi account without authority but had also tried to conceal from management the fact that he had done so.

Lady Smith went on to say that this was an example of a case in which the lay members of the ET, having drawn on their valuable ‘common sense’ and knowledge of what any employee could be expected to know, had reached a different conclusion on the facts of the case from that of the Employment Judge.

Had the case been heard by an Employment Judge sitting alone, as is now permissible following the introduction of the Employment Tribunals Act 1996 (Tribunal Composition) Order 2012, the outcome would have been different.

In Lady Smith’s opinion, this illustrated the value of having lay members included in the decision-making process when hearing claims for unfair dismissal, as opposed to Employment Judges sitting alone.

The change in procedures whereby such cases can be heard by an Employment Judge sitting alone means that it is critical that employers present as much evidence as possible of the reasonableness of their actions – based on ‘real world’ experience.

Posted by Peter Nicholas on Monday, October 22, 2012 at 02:06 PM

Worker Who Misused Employer’s Taxi Account Loses Unfair Dismissal Claim

Apostman who was dismissed by Royal Mail Group Ltd. after running up bills for almost £2,500 on the company’s taxi account has failed in an unfair dismissal claim (McCafferty v Royal Mail Group Ltd.).

Thomas McCafferty was dismissed for gross misconduct after charging taxis to the company’s account on 87 occasions. He had only been granted permission to use the account on occasions when he was asked to work on what would otherwise have been rest days.

His employer dismissed Mr McCafferty for gross misconduct after concluding that he knew that he was not permitted to use the account without authorisation.

By a majority decision, the Employment Tribunal (ET) ruled that the dismissal had been fair. The lay members of the ET were of the view that the decision to dismiss was within the band of reasonable responses open to the employer in the circumstances.

Royal Mail Group Ltd. had conducted a reasonable investigation and had reasonable grounds for believing that Mr McCafferty had tried to conceal his unauthorised use of the taxi account.

The Employment Judge dissented, being of the view that the dismissal was unfair. She contended that Mr McCafferty’s long service, clean disciplinary record and the option of a lesser sanction were required to be put in the balance and outweighed the other factors.

Mr McCafferty appealed against the ET’s decision. The Employment Appeal Tribunal was satisfied, however, that there was clearly evidence which entitled the majority to conclude that Royal Mail Group had reasonable grounds for their belief that he had not only knowingly used the company’s taxi account without authority but had also tried to conceal from management the fact that he had done so.

Lady Smith went on to say that this was an example of a case in which the lay members of the ET, having drawn on their valuable ‘common sense’ and knowledge of what any employee could be expected to know, had reached a different conclusion on the facts of the case from that of the Employment Judge.

Had the case been heard by an Employment Judge sitting alone, as is now permissible following the introduction of the Employment Tribunals Act 1996 (Tribunal Composition) Order 2012, the outcome would have been different.

In Lady Smith’s opinion, this illustrated the value of having lay members included in the decision-making process when hearing claims for unfair dismissal, as opposed to Employment Judges sitting alone.

The change in procedures whereby such cases can be heard by an Employment Judge sitting alone means that it is critical that employers present as much evidence as possible of the reasonableness of their actions – based on ‘real world’ experience.

Posted by Peter Nicholas on Monday, October 22, 2012 at 02:06 PM

Unfair Dismissal – Redundancy Selection

In a case concerning redundancy dismissal (Mitchells of Lancaster (Brewers) Ltd. v Tattersall), the Employment Appeal Tribunal (EAT) dismissed the employer’s appeal against a finding of unfair dismissal, but disagreed with the finding of the Employment Tribunal (ET) that the redundancy selection criteria used were ‘indefensibly subjective’.

Peter Tattersall was employed by Mitchells of Lancaster (Brewers) Ltd. as a property manager from 1 May 1998 until his dismissal on 22 October
2010. The company had a senior management team of five people, including Mr Tattersall.

During 2010, Mitchells’ financial situation deteriorated and the board of directors was anxious to make savings. One of their number was detailed to look at what redundancies could be made at senior management level, and a decision was taken that cutting Mr Tattersall’s job would have the least detrimental effect on the business because it was not a role that generated revenue, whereas cutting other senior management posts could have an adverse effect on the company’s attempts to improve its trading position.

Mr Tattersall appealed against the decision to dismiss him but his appeal was rejected. Mr Tattersall brought a claim for unfair dismissal. The ET upheld his claim. In its view, the criteria by which he had been selected for redundancy were ‘wholly subjective’, being based on the views of the directors rather than objective selection criteria.

Furthermore, the process by which he had been selected was unfair as no real consideration had been given to making any of the other four members of the senior management team redundant.

Mitchells appealed against the ET’s decision.  The EAT upheld the finding of unfair dismissal on the ground that the redundancy procedure followed by the employer had been unfair. There was no possibility that Mr Tattersall’s job would be saved as the directors had already decided that he was the only person at a senior level who was potentially to be made redundant. No consideration had been given to whether any other post should be selected.

On the issue of the selection criteria used, however, the EAT criticised the ET’s finding that these were wholly subjective as neither helpful nor accurate. The criteria used should be appropriate in the circumstances. This was a small company in financial difficulties. The criteria used in such a situation are bound to involve a degree of judgment but, said the EAT, ‘they are none the
worse for that’.

To object to a criterion because it was ‘based solely on the views of the directors’ was not a fair objection. Just because criteria used are matters of judgment does not mean they cannot be assessed in an objective way.

Opinions might differ, but that is true of virtually any criterion other than the most simple, such as length of service or absenteeism. In the EAT’s view, the concept of a criterion only being valid if it can be ‘scored or assessed’ could result in selection procedures that are nothing more than ‘boxticking exercises’.

Contact us for advice on redundancy

Posted by Peter Nicholas on Wednesday, October 17, 2012 at 02:03 PM