News Archive for May, 2013

No Presumption of Equality in Property Ownership, Rules Court

When a couple heeded the advice of their mortgage adviser and put the property they bought together into only one of their names, an eventual dispute over who owned what was always a possibility.

The man paid all of the bills relating to the property, including the mortgage. The contribution from his partner was £100 per week, which went towards the general housekeeping expenses and towards the maintenance of their two children.

When the question of their relative interests in the property came to court, the judge found that the man’s share should be 90 per cent and the woman’s should be 10 per cent.

The female partner appealed, arguing that the property should be split equally.  The Court of Appeal found that there was no legal presumption that the property had been intended to be jointly owned and, even if there had been, there was no evidence that the couple’s interests would be equal. The original finding of the court was confirmed.

This case shows how important it is to make sure that when you buy a property, the respective interests of each purchaser are agreed and documented. If you are considering buying a property with your partner, contact us for advice.

Posted by Peter Nicholas on Thursday, May 09, 2013 at 03:16 PM

Window Cleaners Triumph in TUPE Claim

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), dismissal of an employee for a reason connected with the transfer of a business is automatically unfair dismissal unless it can be shown to be for an economic, technical or organisational reason involving changes in the workforce.

The Employment Appeal Tribunal (EAT) has ruled that two window cleaners whose employment was transferred under TUPE were under no obligation to mitigate the losses they incurred as a result of their automatic unfair dismissal by accepting less generous terms of employment offered by their new employer (F&G Cleaners Ltd. v Saddington and Others).

The jobs of the two workers transferred from one company to another after their original employer lost a local authority window-cleaning contract. Their new employer had refused to accept that TUPE applied to them and declined to offer them employment on the same terms as before.

The workers refused employment on lesser terms – on a self-employed basis, at a lower rate of daily pay and on a month’s trial. The Employment Tribunal (ET) found that they had been automatically unfairly dismissed and awarded them compensation made up of a basic award and an award for the loss of past and future earnings.

The new employer argued at the EAT that, in refusing to accept the offers of less generous terms, the workers had failed to take reasonable steps to mitigate their losses and their compensation awards should have been reduced
accordingly.

However, dismissing the employer’s appeal, the EAT ruled that the offers of reduced terms were made prior to the
termination of the workers’ employment contracts and that the duty to mitigate did not therefore arise.

Furthermore, the workers’ decision to decline the less favourable terms of employment offered was not unreasonable.

The ET’s consideration of the issue was not confined to the workers’ loss of statutory rights but had taken into account the other differences between the terms to which they were contractually entitled by reason of the TUPE transfer and the new terms which had led to their rejection of the offers.

Posted by Peter Nicholas on Thursday, May 09, 2013 at 03:13 PM

ECHR Rules on Protection of Political Beliefs

The European Court of Human Rights (ECHR) has ruled that United Kingdom legislation is deficient as it does not protect employees, including those with less than one year’s service, from dismissal on grounds of political opinion or affiliation (Redfearn v United Kingdom).

Arthur Redfearn worked as a driver and escort for disabled adults and children in the Bradford area. He was dismissed after he was elected as a local councillor for the British National Party (BNP) as his employer feared that his continued employment would present a health and safety risk to its employees and passengers.

It was also concerned that its reputation might suffer as a result of its association with the BNP, with the possible loss of its contract with the council.

Mr Redfearn was not entitled to bring a claim of unfair dismissal because he had not been employed for the requisite 12 months, so he instead brought a claim of discrimination contrary to the Race Relations Act 1976.

The Court of Appeal ruled that whilst the decision to dismiss Mr Redfearn included racial considerations, it did not follow automatically that he had been dismissed on racial grounds.

The Court held that he was treated less favourably not because he was white but because of a particular ‘non-racial characteristic’ shared by him with a tiny proportion of the white population, namely membership of a party such as the BNP.

The dividing line of colour or race was not made by his employer but by the BNP, which at the time defined its own membership in terms of colour or race.

Properly analysed, Mr Redfearn’s complaint was one of discrimination on political grounds, which falls outside the anti-discrimination laws.

Undeterred, however, Mr Redfearn took his case to the ECHR, complaining of a violation of his rights under the European Convention on Human Rights.

The ECHR has now ruled that Mr Redfearn’s dismissal did disproportionately interfere with his right to freedom of assembly and association pursuant to Article 11 of the Convention.

Although the matters about which he complained did not involve direct intervention by the State, the ECHR found that there is a positive obligation on the authorities to provide protection against dismissal where the dismissal is motivated solely by the fact that an employee belongs to a particular political party, or at least to provide the means whereby an independent evaluation of the proportionality of such a dismissal can be made, taking into account the individual circumstances of a given case.  How the Government will respond to this decision is as yet unclear.

Meanwhile, if you are worried that an employee’s political beliefs could have an adverse effect on your business, contact Christian Houston here for further advice.

Posted by Peter Nicholas on Wednesday, May 08, 2013 at 10:39 AM

Family Feud Fails to Dislodge Bargain

When an academic who had retired to Cornwall bequeathed the bulk of his estate to charity, the will was opposed by his nephew.  The man, a widower, had realised that he needed help and could no longer live alone after a lawnmower disappeared from an outbuilding on his land.

As a solution to the problem, he had asked his nephew to move down to the West Country with his family and to live in one side of his house, whilst he lived in the other.

However, as is too often the case in such circumstances, their relationship subsequently soured and they disputed the basis on which the nephew and his family had come to live in Cornwall.

The academic argued that the arrangement was merely one of sharing household costs whereas his nephew claimed that he had been promised the house in which they lived, in exchange for moving his family to Cornwall and helping to look after his uncle.

The academic insisted he had not made any such promise to his nephew. He made a will leaving the bulk of his £1 million estate to various charities with 30 per cent going to his nephew on condition that he moved out of the property within six months of his uncle’s death.

When the academic died, his nephew challenged the will, arguing that he had in effect entered into a contract with his uncle.

The argument was eventually decided in the Court of Appeal, which accepted the nephew’s claims.

The case illustrates how easy it is for informal arrangements between family members to create legal issues and also the wisdom of seeking legal advice early when such issues are seen to be looming: it is normally much simpler to tackle potential problems than to wait until there is a full-blown dispute in train.

Posted by Peter Nicholas on Tuesday, May 07, 2013 at 02:31 PM

Whistleblowing Partner Not Protected, Rules Court of Appeal

A‘worker’ who acts as a ‘whistleblower’ – disclosing breaches of the law – receives statutory protection under the law if he or she suffers detrimental treatment as a result of having made the disclosure to the appropriate authorities.

A recent case (Clyde & Co LLP and Another v Winkelhof) concerned a partner in a professional firm who had acted as a whistleblower, accusing a fellow partner of engaging in criminal activity including money laundering and bribery.

She claimed to have suffered a detriment and sought to rely on the legislation protecting workers, claiming that her disclosures were ‘protected disclosures’. However, the Court of Appeal rejected her argument, concluding that for such disclosures to be protected by the legislation, there has to be ‘a hierarchical relationship whereby the worker is to some extent subordinate to the employer’. This could not apply to an equity partner.

The confirmation that the whistleblowing legislation does not protect equity partners puts someone who becomes aware of criminal misdeeds on the part of their fellow partners in a difficult position, particularly as partners can be jointly and severally liable for losses to the partnership that result from the activities of their fellow partners.

If you find yourself in such a position, we can advise you on what steps to take.

Posted by Peter Nicholas on Tuesday, May 07, 2013 at 02:27 PM

Supreme Court Rules in Equal Pay Case

The Supreme Court has ruled, by a majority of three judges to two, that 174 former employees of Birmingham City Council who left their jobs between 2004 and 2008 do have the right to pursue their equal pay claims in the civil courts as breach of contract cases (Birmingham City Council v Abdulla and Others).

The women – many of whom worked as cooks, cleaners and care assistants – argued that they had been denied payments and benefits given to men doing equivalent work, in breach of equal pay legislation.

They were prevented from taking their cases to the Employment Tribunal (ET) as the six-month time limit that applies to such cases had expired.  Instead, they launched High Court proceedings, which benefit from a six-year limitation period.

Birmingham City Council had attempted to strike out the women’s claims on the ground that resolution of equal pay disputes fell within the exclusive jurisdiction of the ET.

The High Court and the Court of Appeal rejected this argument and the Supreme Court has now dismissed the Council’s appeal.

The judgment effectively extends the time limit for equal pay claims from six months to six years, which is the biggest change to equal pay legislation since it was first introduced in 1970.

It means that employers are open to the threat of claims long after the employment relationship has come to an end and face the prospect of an award for costs being made against them should they lose the case.

 

Posted by Peter Nicholas on Tuesday, May 07, 2013 at 10:49 AM

Statutory Maternity, Adoption and Paternity Pay Increases

The standard weekly rate of Statutory Maternity, Adoption and Paternity Pay will increase from £135.45 to £136.78 for weeks commencing on or after 7 April 2013.

Statutory Sick Pay The weekly rate for days of sickness absence commencing on or after 6 April 2013 will increase from £85.85 to £86.70.

For any employment issues please contact Christian Houston here.

Find out more via our Fact Sheets here.

Posted by Peter Nicholas on Tuesday, May 07, 2013 at 10:39 AM

Squatters – What to Do Now

Although it has been widely reported that recent changes to the law make squatting in residential premises a criminal offence for the first time, this is not strictly true. Refusing to leave a property when requested by a ‘displaced residential occupier’ has been a criminal offence for more than 30 years, and the theft of someone else’s electricity etc. and causing damage to a property are also criminal acts.

The new laws on squatting only apply to residential buildings, not land in general, and they only apply to people who are living or intending to live in the property in which they squat, not to transient occupiers.

If a property you own is occupied by squatters, persuading the police to take action can be a difficult job and it is crucially important to be able to demonstrate conclusively your right to take action to recover your property.

Do not be surprised if the squatters claim that you have entered into a lease with them, and be prepared to refute such claims and have the necessary proof available at the beginning.

If your property is occupied by squatters, we can assist you in obtaining possession.

View our Fact Sheet here.

For more information contact Debbie Jenkins here.

Posted by Peter Nicholas on Tuesday, May 07, 2013 at 10:29 AM

DPA Law secures top accolade from the national Law Society

DPA Law in Llanelli South Wales has secured the national Law Society’s law management quality mark, Lexcel.
Lexcel is developed specifically for the legal profession.  It is an optional, recognised accreditation scheme for law firms and in-house legal departments which gives assurance that a practice meets high client care and business management standards.

To gain and retain Lexcel accreditation, a practice must undergo a rigorous initial then annual application and assessment process.  This includes conducting background checks and an on-site visit from an experienced, trained Lexcel assessor.

Peter Nicholas said “While we are proud to have secured Lexcel, it is our clients and staff who are the main beneficiaries.  They can be assured that the way we manage the practice has their interests at heart and runs efficiently.  There is a lot of choice in the legal services market, but being Lexcel accredited demonstrates our commitment to client care and best practice.”

Lucy Scott-Moncrieff, President of the Law Society of England and Wales, said: Gaining and maintaining Lexcel is no mean feat.  There are many facets of being a Lexcel accredited law firm, including client care.  A commitment to customer service in today’s evermore competitive legal services is vital.

“By undergoing the rigorous Lexcel application and assessment process practices can show the positive steps they are taking to help clients in the increasingly diverse, complicated legal services market.

“The scheme is a beacon of quality to clients and potential clients alike.”

Posted by Peter Nicholas on Tuesday, May 07, 2013 at 10:20 AM

DPA Law secures top accolade from the national Law Society

DPA Law in Llanelli South Wales has secured the national Law Society’s law management quality mark, Lexcel.
Lexcel is developed specifically for the legal profession.  It is an optional, recognised accreditation scheme for law firms and in-house legal departments which gives assurance that a practice meets high client care and business management standards.

To gain and retain Lexcel accreditation, a practice must undergo a rigorous initial then annual application and assessment process.  This includes conducting background checks and an on-site visit from an experienced, trained Lexcel assessor.

Peter Nicholas said “While we are proud to have secured Lexcel, it is our clients and staff who are the main beneficiaries.  They can be assured that the way we manage the practice has their interests at heart and runs efficiently.  There is a lot of choice in the legal services market, but being Lexcel accredited demonstrates our commitment to client care and best practice.”

Lucy Scott-Moncrieff, President of the Law Society of England and Wales, said: Gaining and maintaining Lexcel is no mean feat.  There are many facets of being a Lexcel accredited law firm, including client care.  A commitment to customer service in today’s evermore competitive legal services is vital.

“By undergoing the rigorous Lexcel application and assessment process practices can show the positive steps they are taking to help clients in the increasingly diverse, complicated legal services market.

“The scheme is a beacon of quality to clients and potential clients alike.”

Posted by Peter Nicholas on Tuesday, May 07, 2013 at 10:20 AM