News Archive for August, 2017

Shared Parental Pay – ET Upholds Father's Discrimination Claim

The introduction of the Shared Parental Leave Regulations 2014 has given eligible parents more flexibility as to how leave can be taken after the birth or adoption of a child.

Shared parental leave (SPL) enables mothers to share up to 50 weeks' maternity leave and 37 weeks' pay with their partner so that both parents are able to keep a strong link to their workplace. However, the Regulations only require that employees taking SPL are paid at the statutory rate, which is currently £140.98 per week, or 90 per cent of the employee's average weekly earnings, whichever is lower.

There is no statutory requirement for employers that offer enhanced maternity rights to women on maternity leave to 'mirror' those arrangements for employees who opt to take SPL.

However, guidance produced by the Government – 'Employers' Technical Guide to Shared Parental Leave and Pay' – stresses that if an occupational scheme is offered to a mother on SPL, it could constitute sex discrimination if the same rights are not afforded to fathers or a mother's partner.

In a recent case on this topic (Ali v Capita Customer Management Limited), the Employment Tribunal (ET) upheld a father's claim that a policy giving mothers with 26 weeks' employment service the option of 14 weeks' enhanced maternity pay followed by 25 weeks payable at the statutory rate, whereas fathers were only entitled to take two weeks' paternity leave on full pay then SPL paid at the statutory rate, was discriminatory on the grounds of sex.

In the ET's view, the aim of SPL is to encourage fathers to take a greater role in childcare. It is up to the parents to choose who has the role of primary carer and the decision should be free from 'generalised assumptions' on the part of the employer that the mother is better placed to fulfil this role than the father. As the judgment was at ET level, it is not binding.

However, it has been reported that the employer intends to appeal against the decision. Certainly, a ruling of the Employment Appeal Tribunal, bringing clarity on this issue, would be welcome.

Meanwhile, employers are advised to review their own SPL policies. Where the treatment of men and women is different, can this be objectively justified if challenged?

Contact us for individual advice on this issue.

Posted by Peter Nicholas on Wednesday, August 30, 2017 at 10:49 AM

Early Termination Was Breach of Apprenticeship Contract

The introduction of the apprenticeship levy and changes to the way in which funding for apprenticeships operates do not affect the way in which training for apprentices who started an apprenticeship programme before 1 May 2017 is funded.

Employers need to carry on funding training for these apprentices under the terms and conditions that were in place at the time the apprenticeship commenced.

A recent case (Kinnear v Marley Eternit Limited t/a Marley Contract Services) is a reminder that a failure to comply with the terms of a fixed-term apprenticeship contract is punishable by damages of up to £25,000 for breach of contract at the Employment Tribunal (ET).

Daniel Kinnear was employed by Marley Contract Services as an apprentice roof tiler in October 2014. The apprenticeship contract was for a fixed period of four years and, on its completion, Mr Kinnear would obtain a certificate confirming his completion of a Modern Apprenticeship in Construction Roofing Occupations.  He was trained in roofing using mainly concrete roof tiles or 'Marley' products.

In July 2016, however, Mr Kinnear was told that he was being made redundant owing to a downturn in the company's workload on account of a slump in the construction industry.

His appeal against that decision was rejected by the company.

Although Mr Kinnear did his best to find alternative work, signing on at various agencies, work was in short supply and his attempts to find an employer with whom he could complete his apprenticeship were unsuccessful as he was by that time over the age of 21 and entitled to a higher rate of pay than younger workers and those in the first year of their apprenticeship.

Mr Kinnear brought an ET claim for breach of contract seeking damages based on the payment of wages he would have received had he been allowed to complete his apprenticeship. No response to his claim was validly lodged by Marley Contract Services.

The ET found that Marley Contract Services had paid no attention to Mr Kinnear's employment status with the company and his contract entitled him to be trained and employed until his apprenticeship finished. It still had 122 weeks left to run, for which he would have been paid £24,217.

In addition, the skills he had acquired were based on using the company's own roofing products and he was disadvantaged with regard to his future level of earnings on account of not having his roofing qualification.

Mr Kinnear was awarded damages of £25,000, the maximum an ET can award in breach of contract cases, and Marley Contract Services was ordered to reimburse the £160 fee he had paid to lodge his claim.

Contact us if you would like advice on any of the issues raised in this bulletin or on any other employment law matter.

Posted by Peter Nicholas on Wednesday, August 16, 2017 at 11:50 AM

Power of Attorney Fees Fall

With the recent furore over the Government's proposedincrease in the cost of obtaining probate on larger estates, it is nice to see that the direction of change in costs charged by the state is not inexorably upward.

On 1 April, the cost of registering a Lasting Power of Attorney (LPA) reduced from £110 to £82, after the Court of Protection realised that the number of LPAs being registered meant that its income was exceeding the cost of running the service.

The fee for resubmitting an LPA for registration has also fallen – from £55 to £41.

LPAs are an extremely useful way of making sure that your financial affairs and any healthcare wishes are dealt with by those you trust in the event that you become unable to deal with them yourself.

For advice on the benefits and uses of LPAs, contact us.

Posted by Peter Nicholas on Wednesday, August 16, 2017 at 11:44 AM

Having Building Work Done? Put the Contract in Writing!

There is still a tendency towards informality in domestic building contracts although the potentially dire consequences of not having a written agreement should be common knowledge.

In one case, a couple and their builder became mired in costly litigation that could have been avoided had a lawyer been consulted at the outset.

The couple paid £375,000 for a house with the intention of completing its conversion into two homes. They employed a builder who knew the woman's father and issued instructions to him largely orally or by text message. A dispute arose as to how much was owed to the builder and whether any of the work he had carried out was defective. In the absence of a
written contract, they could not even agree on the rate of VAT that should be applied to the builder's invoices.

After the builder launched proceedings, both sides raised numerous detailed issues concerning the progress of the project, right down to the way in which bi-folding doors had been fitted.

After assessing the value of the builder's work, and making deductions for defects and other matters, a judge found that the couple owed him just over £44,000, to which standard rate VAT would be added.

The Court of Appeal dismissed both the couple's appeal and the builder's cross-appeal against that decision. The Court
praised the manner in which the judge had dealt with a fractious piece of litigation in which entirely disproportionate legal costs had been incurred.

In this case, both parties will have been left with substantial and avoidable legal costs. The building industry's standard
contract contains a mechanism for resolving such disputes.

Had the instructions which varied the contract been given in writing and estimates for the work provided, it is probable that
the dispute could have been resolved much more quickly and amicably and at much lower cost.

Contact us for assistance in negotiating any substantial contract you may be considering.

Posted by Peter Nicholas on Tuesday, August 15, 2017 at 11:00 AM

Put it in Writing

It is astonishing how often disputes over the beneficial ownership of assets become the subject of lengthy court proceedings. In a case decided in March, an argument about the ownership of a property ended up (at huge cost to the loser) in the Court of Appeal.

The issue was whether the property was owned in accordance with how much the two owners had contributed to its purchase and normal running costs or whether it was owned in some other proportion.

In the absence of compelling evidence that ownership of the property was shared in any other proportion, the Court of Appeal upheld the lower court's decision that it should be determined by the relative contributions of the owners.

This dispute would not have arisen if the people involved had taken the precaution of executing a simple agreement at the outset.

For advice on any matter relating to property ownership or cohabitation, contact us.

Posted by Peter Nicholas on Tuesday, August 15, 2017 at 10:55 AM

Sale of Goods Law Provides Route to Compensation for Holidaymakers

An interesting use of the law relating to the sale of goods recently helped a couple whose all-inclusive holiday was ruined by gastroenteritis to obtain compensation from travel group First Choice.

They claimed damages under the Supply of Goods and Services Act 1982 on the ground that the food they ate which made them ill constituted 'goods' which were transferred from the hotel to them and which were not of satisfactory quality, being contaminated.

Normally, such claims are brought under the Package Travel, Package Holidays and Package Tours Regulations 1992 based on the negligence of the tour operator's agent (i.e. the hotel).

The reason the case was brought under sale of goods law was that there was extensive evidence of the steps taken by the hotel concerned to comply with high hygiene standards and the measures taken were such that it would have proved very difficult to hold the hotel at fault so as to succeed in a claim under the Regulations.

The case went to the Court of Appeal, which ruled that '...in the absence of any express agreement to the contrary, when customers order a meal property in the meal transfers to them when it is served'.

The claimants were awarded damages of £24,000. If you have been injured or developed an illness whilst on holiday, you could be entitled to compensation if this occurred as a result of poor maintenance or hygiene. Do try to obtain as much contemporary evidence as possible (photographs and witness statements from other holidaymakers can be very useful).

We can advise you how to claim depending on the circumstances.

Posted by Peter Nicholas on Monday, August 14, 2017 at 10:55 AM

Holiday Pay and Overtime

In Bear Scotland Limited and Others v Fulton and Others, the Employment Appeal Tribunal (EAT) ruled that employers should include 'non-guaranteed' overtime that is routinely worked when calculating an employee's holiday pay.

Specifically, Article 7 of the EU Working Time Directive (WTD) should be interpreted so that payments for overtime which employees are required to work but which their employer is not obliged to offer them do count as 'normal remuneration' for the purposes of calculating holiday pay in respect of annual leave taken under Regulation 13 of the Working Time Regulations 1998 (WTR).

However, the EAT went on to find that this decision only applies to the 20 days' annual leave entitlement guaranteed under the WTD, not the additional eight days' entitlement granted under Regulation 13A ofthe WTR.

Furthermore, claims for unlawful deductions from holiday pay are subject to the three-month limitation period for bringing claims laid down by the Employment Rights Act 1996 and a 'series' of deductions is broken if there is a gap of more than three months between non-payments. This put a limit on any retrospective liability on the part of employers, particularly as the EAT ruled that additional leave under Regulation 13A should be 'the last to be agreed upon during the course of a leave year'.

Recognising the importance of the issues, the EAT granted the parties leave to appeal to the Court of Appeal on all points on which they lost, but doubted whether an appeal against its main finding as regards overtime and normal remuneration would succeed.

The trade union Unite, which acted for the claimants, subsequently indicated that it would not be appealing against the limitations imposed by the EAT on retrospective claims.

When the matter returned to the Employment Tribunal (ET), it found it was bound, in the absence of any finding that it was not reasonably practicable for the claimants to bring proceedings within the normal time limit, to conclude that certain of the claims for unauthorised deductions from wages were time barred 'because the chain linking a series of deductions is broken where there occurs a period of three months or more between successive deductions' in respect of payment for the 20 days' guaranteed leave entitlement.

The claimants appealed against the ET's ruling, arguing that the earlier decision of the EAT on this point might not be binding and would lead to 'arbitrary and unfair results'. However, the EAT dismissed their arguments. None of the limited circumstances in which the EAT would depart from one of its earlier decisions existed in this case.

There was no doubt that the principle expressed in the EAT's earlier decision was binding on the ET and, in the absence of any dispute over the facts, the ET had done what it was bound to do and excluded claims where there was a period of more than three months between any two non- or under-payments.

Furthermore, it is not permissible to attempt to use a later appeal against a decision of the ET to try to overturn an earlier decision of the EAT in the same litigation. The proper course for a litigant who is unhappy with a decision of the EAT is to appeal to a higher court, which the claimants in this case had declined to do.

Contact us if you would like individual advice on what should be included as normal remuneration when calculating holiday pay.

Posted by Peter Nicholas on Monday, August 14, 2017 at 10:50 AM