May 2007

The Licensing Act 2003 requires the Secretary of State to issue guidance to licensing authorities on the discharge of their functions under the Act. Revised draft guidance to assist local authorities in delivering the measures contained in the Act has been issued for consultation.

A recent case shows the seriousness with which the Secretary of State for Trade and Industry regards the conduct of directors when this is seriously negligent. The outcome was that two company directors have been banned from holding office as directors for 15 years.

The issue of VAT input tax recovery on motor vehicles has a long history of producing conflict between VAT-registered traders and HM Revenue and Customs (HMRC).

In general, no input VAT is recoverable on cars, although there are exceptions, in particular where the car is leased. One exception is when the car in question has no private use of any kind.

Changes introduced in December 2005 extended protection under the Disability Discrimination Act 1995 to those diagnosed with progressive forms of cancer.

The Chartered Institute of Personnel Development, together with the Working with Cancer group and the cancer information charity Cancerbackup, has produced guidance entitled 'Cancer and working: guidance for employers, HR and line managers'.

The guidance will prove useful to employers in responding to the needs of employees affected by cancer or other critical illnesses. It can be downloaded at

HM Revenue and Customs (HMRC) have now published guidance on Real Estate Investment Trusts (REITs), which became available on 1 January 2007.

A rise in reported business fraud of 40 per cent in 2006 means that fraud has reached new record levels and is estimated to be costing UK businesses £1.37bn annually. Most fraud is employee fraud.

The number of reported frauds which cost the individual firms involved more than £50,000 was up by a third, to 295 cases.

The result of the well-publicised 'Whiter Shade of Pale' case was not one which will make either side 'turn cartwheels across the floor'. In essence, the claim was that Matthew Fisher, a former organist with Procol Harum, should be treated as a co-writer of the 1967 million-selling smash hit featuring his distinctive organ work.

Although the current thinking of the courts is to consider contractual disputes from a practical commercial angle, they will not normally 're-write the contract' just because the meaning of the provisions of the contract in dispute might conflict with commercial common sense or if this would result in them being more in accord with normal business practice.

Intellectual Property (IP) audits are to be offered to small businesses in the UK.
Up to 40 small firms, many of which have never before sought to protect their IP, will benefit from a 3-day 'IP audit', being piloted by the Patent Office in collaboration with four Regional Development Agencies. Two groups will be targeted - companies that have filed only one or two IP applications and those that have never filed.

The Occupational and Personal Pension Schemes (Consultation by Employers and Miscellaneous Amendment) Regulations 2006, introduced under the Pensions Act 2004, are extended to employers with more than 100 employees from 6 April 2007. Previously, the Regulations only applied to employers with more than 150 employees.

Employers covered by the legislation are not permitted to make major changes to their pension scheme without first consulting with current and prospective members, or their representatives, for a period of at least 60 days, prior to the changes being introduced.

From 2 April 2007, all those seeking permission to live in the UK permanently will need to demonstrate that they have the requisite language skills and knowledge of life in the UK to integrate successfully into British society. There will be two ways of doing this.

The Department of Trade and Industry (DTI) has announced a new policy for dealing with rogue employers who fail to pay the statutory national minimum wage, currently £5.35 per hour for adult workers.

Since 1 October 2005, all claims to Employment Tribunals, other than in specified proceedings, must be presented on a form ET1, prescribed in accordance with Regulation 14 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004.

When couples with children break up, normally one of the big bones of contention is how much money should be paid by way of child maintenance by the parent who does not live with the children to the one who does. When the financial means of the couple are relatively modest, this is normally fairly straightforward as the limits of provision are clear. However, in 'high net worth' cases, it can be much more problematic.

In such cases, the issue of maintenance for children raises several questions, such as:

For how long should the maintenance be paid?

The Court of Appeal has agreed with the Employment Appeal Tribunal (EAT) in the important 'whistleblowing' case of Bolton School v Evans, which examined the causal nature of the link between the protected disclosure and the detriment suffered by the employee who made it.

In the case of marriage breakdown where there are children involved, there is always the question as to how much information should the children be made aware of. Factors in deciding on what to tell the children and how much detail to go into really depends upon their age and level of maturity. In most occasions many feel it is important to keep the children informed right through the separation process and also on any issues that may occur after the separation has been completed.

The Sydney Mitchell team of runners successfully completed the course without being washed away. In spite of the terrible weather all ten of the Sydney Mitchell team of runners turned out and finished the course. Congratulations to Charles Fentiman, who got the fastest time with 34mins 35seconds.

The weather was so dire there was a poor turnout for the locals who normally line the route in droves. The runners battled through and managed to keep their spirits high whilst turning in some pretty respectable times.

Contractors in the building industry are reminded that the new Construction Industry Scheme (CIS) is scheduled to start on 6 April 2007 and that the tax deduction rate for subcontractors registered for net payment is 20 per cent (not 18 per cent as previously proposed). Subcontractors who are not registered under the CIS will have tax deducted at 30 per cent.

Under section 98A of the Employment Rights Act 1996 (ERA), if an employer fails to follow the correct procedure in relation to the dismissal of an employee, this will not by itself make the employer's action unreasonable if he can demonstrate that he would have decided to dismiss the employee even if he had followed the proper procedure.

An employee wishing to bring an unfair dismissal claim must do so within three months of their effective date of termination. Time limits for presenting claims to the Employment Tribunal (ET) are normally strictly enforced. If the deadline is missed, the Employment Rights Act 1996 states that the claim will only be accepted if it is presented... 'within such further period as the Tribunal considers reasonable in a case where it is satisfied that it was not reasonably practicable for the complaint to be presented before the end of that period of three months'.

When deciding whether an employee has been discriminated against on the grounds of their sex, a comparison must normally be made with someone else - 'the comparator' - in circumstances not materially different from the employee's own. Where there is no suitable comparator, a hypothetical comparator must be constructed. Unsurprisingly, problems often arise in sex discrimination cases in determining the correct comparator to be used and exactly which circumstances are relevant. This was the issue in a recent case in the Employment Appeal Tribunal (EAT) - Kettle Produce Ltd. v Ward.

Dealing with stress in the workplace is a difficult issue for employers and certainly one that cannot be ignored.

In May 2006, Peter Lewis, the former global head of equity trading at the bank HSBC, lost his £5m claim, under the Employment Equality (Sexual Orientation) Regulations 2003, that he was dismissed from his job because he was gay.

Mr Lewis had been dismissed on the ground of 'gross personal misconduct' following an alleged incident of sexual harassment, at the bank's gym, which he denies.

Since April 2005, those who work for employers with 150 or more employees have had the right, under the Information and Consultation of Employees Regulations 2004, to be provided with information and to be consulted on major business decisions which affect them at work, with a view to reaching agreement on decisions likely to lead to substantial changes in work organisation or employers' contractual relations with their employees.

The Health and Safety Executive (HSE) has successfully prosecuted a self-employed builder for contravening the Work at Height Regulations 2005.

David Clark, from Chippenham in Wiltshire, was fined £2,000 with costs of £1,500 after construction inspectors found that none of the safety measures for working at height had been taken during work on the roof of a farm building. No nets or barriers had been put in place to ensure the safety of Mr Clark and the two other men carrying out the work.

A couple who fell foul of an old law applying to their property are faced with a bill for building repairs plus legal costs amounting to an estimated total of £400,000, following a reverse in the House of Lords.

Most travellers know that large quantities of cigarettes and tobacco can be brought back to the UK from another EU country, provided duty and tax have been paid on them in that country and they are for personal consumption only. In this context, personal consumption includes gifts to family and friends.

A recent case will set warning bells ringing for those who manage sports teams involving children and for school sports teachers. It involved a rugby match in which a boy who was well over-age was selected to play for his school's under 15 team. He committed a tackle which resulted in a broken elbow for one of the opposing team's players, who was much smaller and less heavy than he.

Reading University has been found not to be liable for the death of a worker from mesothelioma. It was alleged that the man was exposed to asbestos when assisting in works to the University's library in the 1980s.

The Court of Appeal has dismissed a £150,000 damages claim brought against the Royal British Legion by a woman who broke her leg when she fell into a hole in a patch of village green where a maypole used to be placed.

A wife was recently able to obtain a divorce settlement worth £10m when the post-nuptial agreement she had entered into was ruled invalid in the High Court, because she had signed it under excessive pressure.

Insurance magnate John Charman, whose fortune is estimated at over £130m, has launched an appeal against the £48m financial settlement awarded to his ex-wife Beverley.

The award, the largest ever made by a British court, followed her refusal to accept his offer of £20m, which the tax exile famously described as 'enough for anybody'. He claimed that such a sum would be impossible to spend in a person's lifetime. In his view, the original judgment was 'poor and blatantly discriminatory'.

A company director was recently sent to jail after taking what can only be described as a wildly overzealous approach to making sure his ex-wife was not cheating him by failing to disclose all her assets.

A recent Court of Appeal decision dealing with appeals against sentences by six drivers found guilty of causing death by dangerous driving has provided assistance in ascertaining the length of sentence that is likely to be imposed in such cases.