Loving couples often contribute together to the cost of buying a home. However, if legal advice is unwisely dispensed with, such arrangements are often not recorded on title deeds and, as one tribunal case showed, that can store up serious trouble for the future.

The case concerned a couple who, despite having been through an Islamic wedding ceremony, were not legally married because the necessary formalities had not been complied with. They had children together and moved into a flat which was later compulsorily purchased by a local authority. The proceeds of the forced sale were put into buying a new home which they occupied until the end of the relationship.

Both the flat and the new home had been registered in the woman’s sole name. However, the man claimed that £10,000 of the flat’s £11,500 purchase price had been provided by his family and that he had paid for renovation works. On that basis, he argued that he was entitled to a beneficial interest in the new home. In resisting his claim, however, the woman insisted that the money used to buy the flat came from her own resources, a dowry provided by her mother and loans received from her family.

In ruling on the dispute, the First-tier Tribunal (FTT) noted that it largely came down to one person’s word against another’s in the absence of any documentary evidence to support either of their accounts. After the man’s uncle testified that he had given him £10,000 in cash towards the purchase of the property, the FTT found that the man had an interest in the new home to the extent of his contribution.

Please contact Adam Oleskow on 0121 746 3300, email a.oleskow@sydneymitchell.co.uk or fill in our online enquiry form.

Many people might think those who sleep on the job would not be entitled to be paid the National Minimum Wage (NMW) whilst their eyes are closed, but that is by no means always the case.  The Employment Appeal Tribunal (EAT) has given guidance on the issue in an important test case, particularly for the care sector.

The EAT was dealing with three appeals from Employment Tribunals concerning employees – two of them care workers – whose presence was required at night in order to respond to emergencies or otherwise perform their duties. The cases raised a common issue as to whether they were entitled to receive the NMW for the entirety of their shifts or only for those periods when they were awake.

In ruling on the matters, the EAT noted that a failure to pay the NMW when required can lead to penalties, and potentially criminal sanctions, against employers. The issue was of particular significance to the care sector, in which so-called ‘sleep-in’ shifts are common, and there was a pressing need for certainty in the law.

Recognising the difficulty of the issue, the EAT noted there is a clear dichotomy between those cases where an employee is working merely by being present at an employer’s premises, whether or not provided with sleeping accommodation, and those where an employee is provided with sleeping accommodation and is simply on-call.

There was no single key with which to unlock the issue as to whether the NMW was payable during hours spent asleep. The test was a multi-factorial one that required an assessment of relevant factors, including an employer’s purpose in engaging a particular worker, restrictions on a worker’s personal activities during hours spent on-call, the degree of responsibility undertaken and the immediacy of the requirement to provide services.

The EAT acknowledged that such an approach meant that no one factor could be treated as determinative and did not provide as much clarity as might be desired. However, there was no bright line test and each case was likely to turn on its own facts. One of the appeals, brought by a couple who worked as wardens of a caravan park, was allowed and that matter was remitted to a fresh Employment Tribunal for reconsideration. The other two appeals, each brought by an employer in the care sector, were dismissed.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

Planning decisions often involve a delicate balancing exercise between the benefit that a development will bring and the harm that it will cause. That was certainly so in one case in which the High Court gave its blessing to a football club’s plans for a state-of-the art training facility and academy.

Construction of the two-storey facility would involve major land-levelling works and the import of 180 cubic metres of infill. The 60-acre site chosen was classified as Metropolitan Open Land and the club’s proposals had encountered stiff opposition from local people who were concerned at the loss of public recreational space. The local authority granted planning consent on the basis of an officer’s report that cited the compelling need for the facility and a lack of alternative brownfield sites.

In dismissing a campaigner’s judicial review challenge to that decision, the Court rejected claims that the council’s planning committee had been materially misled by the officer’s report. The impact of floodlighting, noise and the reduction in public access to the land had all been properly taken into account.

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

A recent change to the way in which compensation for seriously injured negligence victims is calculated has led to a dramatic increase in the size of awards – but they are still no more than is needed to ensure that their care needs are met for life.

One case concerned a young cerebral palsy sufferer who will never be able to live independently after he was starved of oxygen during his birth. The NHS trust that managed the hospital where he was delivered admitted full liability for his injuries and issued an apology to him and his family at the High Court.

Following negotiations with the boy’s legal team, the trust agreed to pay a lump sum of £6,874,283, plus index-linked and tax-free annual sums to cover the costs of his lifelong care. Those payments will start at £155,000, rising in steps to £215,000 when he reaches the age of 60. If he attains the age of 70, the total compensation package will be worth around £18 million.

The settlement was negotiated in the light of a change in the discount rate that is applied to compensation awards to take account of the claimant's returns when the lump sum is invested. The discount rate has recently been reduced to minus 0.75 per cent, having previously been unchanged at 2.5 per cent since 2001, to take account of historically low returns on investments.

For further information on this article, please contact Mike Sutton on 0121 698 2200, email m.sutton@sydneymitchell.co.uk or fill in our online enquiry form.

The dividing line between ‘workers’ and ‘employees’ can be very difficult to discern, but is of the greatest significance. That was certainly so in the case of one man who worked for a charity for years without any form of written contract.

The man, who started out as a paid intern on a trial basis, received about £1,000 a month for performing a wide range of tasks, many of them concerned with assisting the charity’s founder in dealing with personal matters. Neither he nor the charity made any account for Income Tax or National Insurance Contributions.

Following his acrimonious departure, he lodged complaints with an Employment Tribunal (ET), which accepted that he was a worker but found that he was not an employee within the meaning of the Employment Rights Act 1996.

The ET found that the absence of a written contract or provision for holiday pay, and the fact that he was generally only remunerated when he worked, were inconsistent with employment status. As a result of that ruling, his whistleblowing and unfair dismissal claims were struck out.

In upholding his challenge to those aspects of the decision that were adverse to him, the Employment Appeal Tribunal found that the ET had erred in law. Those factors that were said to be inconsistent with employment status were in truth no more than pointers in that direction. The ET had also made an apparent factual mistake in respect of his receipt of holiday pay. The case was sent back to the same ET for fresh consideration.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

HR FORUM

Come along to our HR forum and discuss topical employment issues

In a round table discussion, join with your fellow HR professionals from across the region.

Managing Sickness Absence - An overview

In this month's Forum there will be an active discussion about 'Managing sickness absence.'
Key practical issues to consider when:

  • An employee is off sick
  • Return to work
  • Problem areas

Let Jade Linton, Sydney Mitchell Employment Law Specialist, give you the opportunity to review
some recent case studies and host an active discussion. 

You will also receive a copy of the latest Sydney Mitchell Employment Law Update.

We are sure you will find this forum of interest. Book now to attend this FREE forum!

Please confirm your attendance by emailing Jade.

We do hope you can join us.

When: 30 March 2017

Time: 1.00 pm

Where:
Sydney Mitchell LLP
336 Stratford Road,
Shirley,
Solihull, B90 3DN

RSVP: JADE LINTON
j.linton@sydneymitchell.co.uk

HR Forum - Sydney Mitchell

 

 

Sydney Mitchell’s Senior Partner, Div Singh, recently hosted a private meeting with Robert Bourns, the President of the National Law Society. Mr Singh was particularly concerned about the ongoing changes to the legal profession and how this risked undermining both the high quality of the legal profession as well as restricting the ability of many people to access justice.  In particular, Mr Singh discussed Lord Justice Jackson’s review as to whether fixed fees should be extended to a much wider range of litigation (up to a value of £250,000). During the meeting Mr Singh pointed out that any implementation of fixed fees in litigation cases needs to be considered very carefully so as to avoid the risk of having clients who win their cases but are then unable to recover the majority of their legal costs. Such an outcome would be seen as unfair and it could deter people from seeking legal redress from the Courts.

Robert Bourns, President of the National Law Society of England & Wales and Div Singh, Sydney Mitchell LLP’s Senior Partner.

Following the meeting Mr Singh commented,

I felt the meeting was very productive and Mr Bourns has a full grasp of these issues.  It is important that people have the ability to access justice and it is equally important that the court system inspires confidence and certainty with both the legal profession and the public.

Mr Bourns responded by saying,

I completely understand the concerns raised by Mr Singh and these concerns are being echoed by so many other solicitors. Our legal profession is the envy of the world and the Law Society is doing everything it can to ensure that this remains the case.

Sydney Mitchell specialist teams include employment, commercial property, company and commercial services, litigation and insolvency. Private client teams include family law, residential property, dispute resolution and wills and probate, tax and trusts and personal injury.

 

The Ministry of Justice has published its long-awaited review of the impact of Employment Tribunal (ET) fees, which were introduced in July 2013.

Whilst the review does identify some areas for concern, it concludes that, on the whole, the objectives for the introduction of fees – i.e. transferring a proportion of the cost from the taxpayer to users of the service who can afford to pay and encouraging the use of the Advisory, Conciliation and Arbitration Service's free Early Conciliation service and other mediation services, whilst at the same time protecting access to justice – have broadly been met, and 'while it is clear that fees have discouraged people from bringing claims, there is no evidence that they have prevented them from doing so'.

As a result of the findings, certain proceedings relating to payments made from the National Insurance Fund will be exempt from ET fees with immediate effect. These include claims in respect of a redundancy payment where the employer is insolvent. In addition, a consultation document has been published seeking views on the review's findings and on a proposal to raise the gross monthly income threshold for fee remission. Views are sought by 14 March 2017.

The TUC has criticised the report, accusing the Government of 'turning a blind eye' to the impact of ET fees. General Secretary Frances O’Grady said, “Until the Government commits to abolishing fees its commitment to ‘improve workers' rights’ in post-Brexit Britain looks pretty hollow.”

The challenge to the fee system brought by the trade union Unison is due to be heard in the Supreme Court on 27 and 28 March 2017.

For advice on any employment law advice, please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form if you need further assistance.

The Government has published the draft National Minimum Wage (Amendment) Regulations 2017, which are due to come into force on 1 April 2017.

The revised rates are as follows:

  • The National Living Wage for those aged 25 and over will increase from £7.20 per hour to £7.50 per hour;
  • The National Minimum Wage (NMW) for 21- to 24-year-olds will increase from £6.95 per hour to £7.05;
  • The NMW for 18- to 20-year-olds will increase from £5.55 per hour to £5.60;
  • The NMW for 16- and 17-year-olds will increase from £4.00 per hour to £4.05; and
  • The apprentice rate of the NMW, which applies to apprentices aged under 19 or those aged 19 or over and in the first year of their apprenticeship, will increase from £3.40 per hour to £3.50.

The accommodation offset will increase from £6.00 per day to £6.40 per day.

For advice on any employment law advice, please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form if you need further assistance.

Office

In the present economic environment, many tenants will be seeking to vacate premises, reduce the size of their premises or renegotiate their leases, so times are tough for landlords. Furthermore, tenants who were ‘good tenants’ or who seemed financially strong may now be a less attractive proposition than they once were.

Here are some tips for landlords to help deal with tenants when a break clause in a lease is looming:
  • Be ready. Do your research on your tenant and try to anticipate their stance. Get up-to-date accounts and look at their operation. A short visit can often be very illuminating;
  • Be ready to remarket your property if negotiations with your tenant break down or they wish to terminate. Put together a pack containing all the necessary planning consents, searches and so on, so a prospective new tenant is in possession of all the information they need to make a decision straight away;
  • Make sure you know when and how notices must be issued. The notice you receive from your tenant may not be valid;
  • If your tenant wishes to renegotiate their lease, make sure you know your market and can ascertain what their other options might be. Also, consider asking for better security; and
  • If you think the tenant is likely to default, remember that your right to repossession of the property may be delayed unless you act first.

If you are an existing Tenant or you are proposing to enter into a Lease, get in touch today for a Lease Health Check and we’ll let you know what you need to know.

For more information, please contact Shilpa Unarkat on 0121 746 3300 email, s.unarkat@sydneymitchell.co.uk or complete our online enquiry form.

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