News Archive for October, 2013

Nut Allergy or Eczema Can Amount to a Disability

A person is disabled under the Equality Act 2010 if he or she has a physical or mental impairment that has a ‘substantial’ and ‘long-term’ adverse effect on their ability to carry out normal day-to-day activities.

In Wheeldon v Marstons plc, the Employment Tribunal (ET) decided, at a pre-hearing review, that a chef’s nut allergy did amount to a disability for the purposes of the Act and his discrimination claim could therefore proceed.

Mr Wheeldon was able to provide medical evidence confirming that he has a nut allergy which could be life threatening and has to adapt his way of living according to this risk. He carries adrenaline auto-injectors at all times in case he comes into contact with nuts and has been admitted to hospital seven times with suspected anaphylactic shock.

In another recent case (Glass v Promotion Line Limited), the ET ruled that a woman who suffers from eczema could proceed with her discrimination claim against her employer because of the severity of her condition and its impact on her daily life.

Posted by Peter Nicholas on Friday, October 04, 2013 at 10:08 AM

Collective Redundancies – The Scope of the Duty to Consult

Under Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULRCA), employers have a duty to consult with appropriate representatives of employees concerning forthcoming redundancies if 20 or more employees are to be dismissed at one establishment within a 90-day period.

In a recent landmark decision, the Employment Appeal Tribunal (EAT) ruled that the words ‘at one establishment’ should be deleted from the Act in order to give effect to EU Council Directive 98/59EC, which it is intended to implement (USDAW and Another v Unite the Union and Others).

The issue arose following the collapse of retail chains Woolworths and Ethel Austin, which went into administration in 2008 and 2010 respectively.

Through their respective unions, the employees who lost their jobs claimed that there had been a breach of the duty to consult over the redundancies.

Their claim was upheld and the Employment Tribunal (ET) awarded employees who had worked at locations with 20 or more employees a protective award – 90 days’ pay for employees of Ethel Austin and 60 days’ pay for employees of Woolworths. However, those who had worked at locations with fewer than 20 employees were denied a protective award.

More than 4,000 employees who were thereby excluded from the payments awarded to their colleagues challenged the ET’s decision.

In reaching its decision, the EAT not only considered the comparative wording of the Directive and Section 188 of TULRCA but also took into account Parliamentary discussions on the introduction of the legislation (as reported in Hansard), case law and the explanatory notes to the Regulations.

It could find no mention of the words ‘at one establishment’ and the limitation was not regarded as ‘fundamental to the policy of the legislation’.

The EAT therefore held that the words ‘at one establishment’ should be deleted from Section 188 of TULRCA, in order to comply with the Directive, and the claimants were therefore entitled to a protective award as a result of their employers’ failure to consult over the proposed redundancies.  Surprisingly, the EAT did not consider it necessary to refer the matter to the European Court of Justice.

Meanwhile, having declined to attend, or comment on, the ET proceedings as he had ‘nothing to usefully contribute about the consultation process between the parties’, the Secretary of State for Business, Innovation and Skills has since become involved in the case and been granted leave to appeal against the EAT’s decision.

If it stands, this decision makes a significant change to the collective consultation obligations of employers when 20 or more employees are to be dismissed as redundant from a business as a whole, irrespective of their place of work.

This will include situations where employees’ original contracts of employment are terminated and new contracts are offered on revised terms.

Posted by Peter Nicholas on Friday, October 04, 2013 at 09:53 AM

Employment Tribunal Fees – Factsheet

As of 29 July 2013, bringing an Employment Tribunal (ET) claim is no longer free of charge for all claimants. The Ministry of Justice (MoJ) has published a useful factsheet containing information on fee levels for different types of claim and how the system operates.

The factsheet can be found in the ET guidance section of the MoJ website. See www.justice.gov.uk/.

Posted by Peter Nicholas on Friday, October 04, 2013 at 09:49 AM

Proposed Changes to TUPE

The Government has published its response to the consultation on proposed changes to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) aimed at ensuring that the legislation is not so burdensome as to prevent mergers, acquisitions or service changes taking place but maintains fairness for employees involved in transfers and a level playing field for businesses.

The service provision change rules introduced in 2006 will not be repealed as the Government is of the view that this could create significant additional uncertainty for businesses and individuals.

Changing a service by re-tendering, insourcing or outsourcing will therefore continue to amount to a relevant transfer under TUPE in many circumstances.

The Regulations will be clarified, however, to take into account recent case law, namely that for there to be a TUPE service provision change, the activities carried on after the transfer must be ‘fundamentally or essentially the same’ as those carried on before it.

As regards the transferee’s obligations when there is a collective agreement in place in respect of employees acquired as a result of a TUPE transfer, following the decision of the European Court of Justice in Alemo-Herron and Others v Parkwood Leisure Limited, the Government proposes to amend TUPE to provide expressly for a ‘static’ approach in such circumstances and set a limit of one year during which collective agreements negotiated pre-transfer will continue to bind transferees.

After that time, terms of employment will be able to be renegotiated provided the changes are no less favourable to
employees.

Other changes include:

  • Amending the Regulations so that changes in the location of the workforce following a TUPE transfer can be within the scope of economic, technical or organisational reasons entailing changes in the workforce, thereby preventing genuine place of work redundancies from being automatically unfair;
  • The minimum time period for complying with the rules regarding the provision of employee liability information will be extended to 28 days prior to the date of transfer; and
  • Businesses with 10 or fewer employees will be allowed to inform and consult directly employees affected by the transfer when there is neither a recognised independent trade union in place nor any existing appropriate representatives.

The changes are planned to take effect in January 2014.

Posted by Peter Nicholas on Friday, October 04, 2013 at 09:42 AM

Family Pays Price for Ignoring Contact Order

When a care plan for children is agreed and there are conditions that apply, it is essential to make sure that these are complied with, as a recent decision shows.

When grandparents allowed ‘sneaky visits’ to their grandchildren by the children’s parents, contrary to the guardianship orders made by the court, the local council applied for the children to be removed from the grandparents’ care.

The children had been placed with their grandparents because the parents had been ‘reckless and incompetent’ in their management of their daughter’s asthma and she had suffered significant physical and emotional harm as a result.

The court had permitted contact with the parents to take place three times per week at a contact centre and once on the weekend at the grandparents’ home.

However, when it became evident that additional unsupervised contact was taking place, the council proposed that the two children be placed with foster carers.

The key question before the court was whether the grandparents had the capacity to meet the children’s needs ‘now and for the foreseeable future’.

The judge concluded that, based on the evidence before the court, a continued long-term placement of the children with the grandparents would not be a ‘sustainable way of meeting their emotional needs’.

The parents did not accept that they should not have care of their children and nor, crucially, did the grandparents. In the judge’s opinion, their failure to accept that the parents’ care would be a danger to the asthmatic daughter would, over time, ‘allow them to take over’.

The council’s care plan was therefore approved.

Posted by Peter Nicholas on Friday, October 04, 2013 at 09:38 AM

Divorce – Equal Division of Assets Not Always the Right Solution

There are no hard and fast rules over the division of assets in divorce cases. In particular, an equal partition of assets is not always appropriate, as was illustrated by the Court of Appeal’s upholding of a judge’s decision to award 70 per cent of a former couple’s capital assets to the wife owing to her lesser earning capacity and child-rearing role.

The husband argued that his ex-wife’s award had left him facing the prospect of having to work more than 40 hours a week in order to meet his commitments to her and to provide an adequate income for himself. He argued that this would have a serious impact on his level of contact with their three-year-old daughter.

He had been ordered to pay his ex-wife £1,070 in monthly maintenance and she had been awarded the lion’s share of the capital amassed during the couple’s 10-year marriage, including a portfolio of five residential properties that were heavily mortgaged.

The husband argued that the award had left him with only £1,430 per month to live on and that this was insufficient to meet his income needs.

However, in dismissing the husband’s appeal and ruling that the unequal division of capital assets was justified in the circumstances, the Court noted that the husband had earned a salary of £75,000 a year before cutting down on his hours to spend more time with his daughter and that the flat where he lived was affordable and adequate for his needs.

The ex-wife, who has care of the couple’s daughter, earned much less, had debts and needed £250,000 to buy a suitable home of her own. Her modest income meant that she could only raise a £100,000 mortgage.

The divorce judge had not ignored the husband’s needs and was entitled to find that he had a substantially higher earning capacity than his ex-wife and that the long hours he would have to work would not impede his contact with his daughter.

There is no substitute for good quality legal advice at all stages of a marriage break-up.

Our family law department is able to provide expert representation in all areas of family law.

Posted by Peter Nicholas on Friday, October 04, 2013 at 09:33 AM

Chalet Owners Face Compound Interest Catastrophe

In a case which starkly underlines the dramatic and often unforeseen impact that compound interest can have on apparently modest service charges, holiday chalet tenants who could end up paying their landlord more than a million pounds annually have failed in a Court of Appeal bid to escape from their catastrophically bad bargain.

Tenants of the 25 chalets complained that service charges that started out at just £90 per year when the leases were signed in 1974 are projected to balloon to more than £1 million per year by the time they expire in 2073.

They attacked the service charge provisions as ‘commercially absurd’ and making ‘no kind of sense’.

However, whilst recognising the difficulty of the tenants’ position, the Court ruled that it could not simply rewrite the clear terms of the leases and accepted the landlord’s arguments that the service charges ratchet up by 10 per cent each year, on a compound basis, resulting in the enormous liability in the later years of the 99-year leases.

Rejecting the tenants’ plea that their service charges should be capped, the Court noted that such an interpretation would involve ‘unacceptably rewriting’ the leases’ clear terms. Whilst the outcome of the case was ‘not at all attractive’, the Court ruled that it would be to distort correct legal principles if new terms were introduced into the leases with the objective of ‘mending a bad bargain’.

Whilst urging the tenants and their landlord to seek a sensible compromise over the dispute, Lord Justice Davis said, “The Court cannot simply come up with some ‘fair’ result irrespective of the terms of the contract.”

Any long-term contract warrants careful reading and the taking of expert legal advice.

Posted by Peter Nicholas on Friday, October 04, 2013 at 09:30 AM

British Weather Clinches Foreign Residence Claim

A recent attempt by the wife of a British expatriate, who had lived for many years in Spain, to persuade the English court to accept jurisdiction over their divorce was frustrated by the Court of Appeal, which decided that the husband’s ‘hatred’ of British weather clinched the argument that he had no intention of returning to the UK and was permanently resident abroad.

After a decree nisi was issued in the family court last autumn, the husband appealed, arguing that the court did not have jurisdiction as he is not UK resident.  He claimed that he is a permanent resident of Spain despite owning several properties in the UK.

The Court of Appeal accepted that his habitual residence is in Spain and evidence presented that he had ‘no intention of ever moving back to the UK’ meant that the decree nisi must be set aside.

Posted by Peter Nicholas on Friday, October 04, 2013 at 09:27 AM