July 2007

Issue 1 - June 2007 - Joint Tenants and Tenants in Common

Sun, 01/07/2007 - 00:00 — Georgina Smith

Many couples are recognising the benefits of splitting their homes in two and becoming Tenants in Common rather than Joint Owners. But what does it mean? This month we look at the difference between Joint Tenants and Tenants in Common.

What is it?

It is one of the only few remaining vehicles to get around the taxman and reduce your inheritance tax bill. It could also prevent you having to sell your home if you need to go into long-term care. All you need to do is change the ownership of your home from joint names to being tenants in common.

Special Needs Duty Not Unlimited

Sun, 01/07/2007 - 00:00 — Georgina Smith
The Court of Appeal has ruled that a school which refused to clean and change an incontinent paraplegic student had not discriminated against him.

The child suffered frequent accidents and a special needs coordinator employed by the school had cleaned and changed him as required. However, when the coordinator suffered a serious back injury whilst lifting the child, that practice was discontinued. The headmaster concluded that the child's continued placement in the school could no longer be justified because of the health and safety implications for staff.

Whistleblowing - 'Reasonable Belief'

Sun, 01/07/2007 - 00:00 — Georgina Smith
It is automatically unfair dismissal to dismiss an employee for making a 'protected disclosure', in good faith, to someone to whom they are entitled to make it, or to penalise them for doing so. Section 43B of the Employment Rights Act 1996 (ERA) defines a 'qualifying' protected disclosure as any disclosure of information which, in the reasonable belief of the worker making the disclosure, tends to show that a criminal offence has been, is being or is likely to be committed and/or that a person has failed, is failing or is likely to fail to comply with any legal obligation he is under.

Acas Research Into Sexual Orientation And Religious Discrimination

Sun, 01/07/2007 - 00:00 — Georgina Smith

The Advisory, Conciliation and Arbitration Service (ACAS) has a statutory function to conciliate in claims made to the Employment Tribunal (ET) in order, where possible, to seek resolution of the case before it proceeds to a full ET hearing.

In 2006/07, ACAS carried out a programme of research aimed at providing a detailed understanding of the nature of ET claims brought under the Employment Equality (Sexual Orientation) Regulations 2003 and the Employment Equality (Religion or Belief) Regulations 2003. The research involved:

Age Discrimination Legislation - Challenges

Sun, 01/07/2007 - 00:00 — Georgina Smith

The Employment Equality (Age) Regulations 2006, which came into force on 1 October 2006, implemented into UK law the EC Equal Treatment Framework Directive of 2000, which outlaws age discrimination in employment and vocational training. The UK was one of the last countries in Europe to enact the Directive into domestic law.

The UK Regulations make all retirement ages under 65 illegal unless objectively justified.

Confusion Over Internet Use In The Workplace

Sun, 01/07/2007 - 00:00 — Georgina Smith
There are many ways in which a business can be damaged if it fails to protect its data or does not have policies in place to ensure correct use of the Internet at work. However, a recent survey has revealed that British businesses are failing to take seriously the need to protect themselves and their employees from potentially damaging Internet use in the office.

Disabled Employees And Sick Pay - Update

Sun, 01/07/2007 - 00:00 — Georgina Smith
In an important judgment in a case concerning the application of sick pay policies to disabled employees (O'Hanlon v HM Revenue and Customs), the Court of Appeal has held that a sick pay policy that did not provide unlimited full pay for a disabled employee who was absent from work for long periods was not discriminatory under the Disability Discrimination Act 1995 (DDA).

Expired Disciplinary Warnings

Sun, 01/07/2007 - 00:00 — Georgina Smith
A further case has illustrated that employers cannot place reliance on a disciplinary warning that has expired, either in disciplinary proceedings or to justify dismissal.

In Airbus UK Ltd. v Webb, the Employment Appeal Tribunal (EAT) has ruled that a Tribunal is 'obliged, and not merely entitled, to ignore expired warnings'.

Landmark Adoption Ruling

Sun, 01/07/2007 - 00:00 — Georgina Smith
A recent case at the Employment Tribunal (ET) is a reminder to employers that women who are planning to adopt a child have similar rights as regards protection from unfavourable treatment as employees who are pregnant.

Monitoring Of Employee's Communications A Breach Of Human Rights

Sun, 01/07/2007 - 00:00 — Georgina Smith
A college employee has been awarded 3,000 Euros in damages plus legal costs after the European Court of Human Rights ruled (Copland v UK) that the monitoring of her telephone, email and Internet use was a breach of her right to a private life and correspondence under the European Convention on Human Rights (ECHR).

Lynette Copland started working for Carmarthenshire College in 1991. In 1995, she began working closely with the newly appointed Deputy Principal (DP).

National Minimum Wage - Fair Payment Of Arrears

Sun, 01/07/2007 - 00:00 — Georgina Smith
In the year 2005/06, the Government recovered over £3.2 million on behalf of over 25,000 workers who had been paid less than the minimum wage by their employers. Under the current system, unscrupulous employers are only penalised if they fail to comply with an enforcement notice issued by HM Revenue and Customs (HMRC). The worker is entitled to arrears based on the difference between the remuneration they received and the national minimum wage rate which applied at the time.

Non-Competition Clause Upheld

Sun, 01/07/2007 - 00:00 — Georgina Smith
Non-competition clauses in employment contracts, which seek to prevent ex-employees from competing with their former employers for a specified period, have traditionally been a difficult area of law. The courts have struck down many such clauses in the past. However, a properly worded and well considered non-competition clause can prove effective, as an insurance broker has found.

Overworked Driver Wins Damages From Employer

Sun, 01/07/2007 - 00:00 — Georgina Smith
A kitchen fitter, who was paralysed in an accident on the M1 after he lost control of the van he was driving, has been awarded substantial damages against his employer.

Michael Eyres was employed by a Bradford based company, Atkinsons Kitchens and Bedrooms Ltd. He was often required to work long hours.

Sex Discrimination - Unlawful Victimisation

Sun, 01/07/2007 - 00:00 — Georgina Smith
Claims for equal pay under the 1970 Equal Pay Act (EPA) have been much in the news lately with many women who have previously been paid less than their male counterparts seeking awards for back pay from local authorities.

Under Section 4 of the Sex Discrimination Act 1975 (SDA), it is unlawful victimisation for an employer to treat a person less favourably because they have brought proceedings against them under the SDA or the EPA.

The Smoking Ban - Do You Comply?

Sun, 01/07/2007 - 00:00 — Georgina Smith
As of 1 July 2007, smoking is illegal in all enclosed public spaces and workplaces, with only a very few limited exceptions. The ban also extends to work vehicles not used exclusively by one person. Employers can no longer operate a policy of having most working areas smoke-free with a designated smoking room for those who do wish to light up. Substantial fines can be levied for failure to comply with the new regulations. Any employer who has not yet taken steps to implement the ban should act immediately.

No-Smoking Signs in Premises

Inheritance Tax And Trust Planning Seminar

Sun, 01/07/2007 - 00:00 — Georgina Smith
On 9th July 2007, Sydney Mitchell held a special 'Inheritance Tax and Trust planning' seminar at Edgbaston Golf Club.

The event itself highlighted the benefits of knowing how you can legally reduce, defer or even avoid Inheritance Tax if the value of your estate is in excess of £300,000 including the value of your home.

Sale Of The Century For Sydney

Sun, 01/07/2007 - 00:00 — Georgina Smith
Shirley based Solicitor Estate Agents Sydney Mitchell, are celebrating their 100th property sale, after being open in the area for just eight months.

The property in South Yardley was only on the market for 2 weeks before it was snapped up. The owner, Mrs Ford, was over the moon to hear that the sale was agreed on her property so quickly.

Rooftop Dancing Injury - Compensation Denied

Sun, 01/07/2007 - 00:00 — Georgina Smith
A woman who, after a couple of drinks one evening, decided that it was a good idea to go up onto the roof and do some dancing, was given short shrift by the court recently when she claimed damages from her landlord after she fell through a skylight.

Ms Siddorn rented a flat next to a garage that had a flat roof with a skylight. The garage was owned by her landlord. She was able to access the roof from one of her windows and one night she was seized by the urge to go onto the roof and dance. Whilst doing so, she fell through the skylight and was injured.

Proposals To Protect Cohabitees

Sun, 01/07/2007 - 00:00 — Georgina Smith

The number of people who are living together in a relationship, neither married nor civil partners continues to rise. Many of these people are probably completely unaware that they have few rights in the event of a break-up of their relationship and that such rights as they do have centre around any children of the relationship.

Sydney Mitchell Selects The Maria Watt Birmingham Foundation For Childhood And Teenage Leukaemia As Their Nominated Charity For The Year

Sun, 01/07/2007 - 00:00 — Georgina Smith

This year Sydney Mitchell will be supporting a local charity, set up by Diane Watt of AIB. The charity is The Maria Watt Birmingham Foundation for childhood and teenage leukaemia and was set up after the recent loss of Diane's daughter Maria.

The aims of this Charitable Trust are:

Your Life In Their Hands

Sun, 01/07/2007 - 00:00 — Georgina Smith
Not many people do, but if you have ever thought about who would deal with your financial affairs should you become physically or mentally unable to do so, you may have wondered about setting up an Enduring Power of Attorney (EPA).

An EPA is a legal document that can be set up, so if for some reason you no longer have the sufficient mental capacity - whether through old age, accident or illness - to deal with your own affairs, you can arrange for someone else to take control of them on your behalf.

Valuing Annuity Payments For Iht

Sun, 01/07/2007 - 00:00 — Georgina Smith
When a person dies, there is often no right to receive any further payment under an annuity. However, many annuities are sold which have 'guaranteed minimum payment periods' - typically five years after the annuity first vests. In such cases, if a person dies before the end of the minimum payment period, further annuity payments will be receivable.

Care Homes And The Human Rights Act

Sun, 01/07/2007 - 00:00 — Georgina Smith
A 72-year-old man has successfully used the Human Rights Act (HRA) in a case against a local authority care home which prevented him from leaving the premises. The man is blind and is further incapacitated as a result of having had a stroke. He did not wish to remain in the home however, preferring to live at home with his wife.

Carrying Cash - New Rules

Sun, 01/07/2007 - 00:00 — Georgina Smith
In a bid to comply with European Directives designed to combat money laundering, HM Revenue and Customs (HMRC) have announced that people either entering the UK from or leaving the UK for a country outside the European Union must now declare to HMRC any sums of cash of 10,000 Euros or more (or the equivalent in another currency). In this context, cash includes bank drafts and travellers' cheques.

Undeclared sums in excess of £1,000 are subject to seizure by HMRC if they have reason to believe that the money is to be used for, or is the proceeds of, unlawful conduct.

Case Sounds Foreign Will Warning

Sun, 01/07/2007 - 00:00 — Georgina Smith
A man who died in Barbados leaving a will there as well as a will made in the UK created a problem for his family. The will made in Barbados was drawn up after his English will and contained the usual clause 'revoking all former wills and testamentary dispositions'. The will contained details of various bequests and dealt with the man's property in Barbados, but it made no mention of any arrangements for his interment or his UK assets.

Cohabiting Couples - Case Shows Wisdom Of Formal Agreements

Sun, 01/07/2007 - 00:00 — Georgina Smith
Setting down on paper their intentions regarding the ownership of assets is not likely to be one of the first things two people think about when they start living together, but a recent case shows the wisdom in such circumstances of making sure that at least some aspects of your arrangements are properly agreed and evidenced.

Consumer Law Gives Protection In Standard Form Contracts

Sun, 01/07/2007 - 00:00 — Georgina Smith
In many commercial situations, businesses are used to dealing with each other by the use of 'standard form' contracts. One of the common instances of the use of such contracts is in the building industry, where construction projects are often governed by standard JCT contracts.

Divorce - Future Earnings Not Taken Into Account

Sun, 01/07/2007 - 00:00 — Georgina Smith
A judgment in the High Court may signal a shift in the ground rules governing the financial settlements in divorce cases.

The case involved a woman whose ex-husband is a high-flyer in the banking industry, earning a substantial salary and bonuses. The woman was awarded £13m in settlement of her claim, but the Court refused to order any further payment by her ex-husband to compensate her for her potential loss of his future earnings. She had sought an additional £1.5m.

Failure To Act Causes Loss Of Claim

Sun, 01/07/2007 - 00:00 — Georgina Smith
A recent case illustrates the point that where a personal injury claim is anticipated, it is important to commence the claim promptly and not to adopt a 'wait and see' attitude.

It involved a serviceman who was partially deafened by a thunderflash whilst on a training exercise in 1993. He immediately noticed the effect on his hearing and in 1993 and 1994 had audiometric testing, which confirmed that he was suffering from tinnitus (ringing or noises in the ears) and deafness in his left ear.

Family Must Face Facts

Sun, 01/07/2007 - 00:00 — Georgina Smith
A couple who applied to the court to have their granddaughter legally known by their surname were unsuccessful recently.

Family Receives £74,000 For Mesothelioma Death

Sun, 01/07/2007 - 00:00 — Georgina Smith
The family of a Lancashire man has received more than £74,000 in compensation after he died from asbestos-related mesothelioma - a cancer of the lining of the lungs.

Government Proposes Changes To Law On Damages

Sun, 01/07/2007 - 00:00 — Georgina Smith
The Department for Constitutional Affairs has issued a consultation document on the civil law relating to claims for damages. The paper considers making it possible for a wider range of people to bring claims for damages where someone has been killed as a result of the negligence of another. It is proposed to extend the categories of persons considered to be dependants and of those eligible to claim damages for bereavement.

The main proposals are:

Husband Loses Big Money Decision

Sun, 01/07/2007 - 00:00 — Georgina Smith
The Court of Appeal has ruled against insurance magnate John Charman and confirmed that the UK's largest-ever divorce settlement should stand.

In September 2006, the Family Division of the High Court ordered that Mr Charman's former wife Beverly should receive a lump sum of £40m and retain existing assets of £8m already in her own name. To accomplish this, it ordered that a trust set up by the couple should be divided, not retained for the benefit of their children.

In Brief - The End For Wigs In Court?

Sun, 01/07/2007 - 00:00 — Georgina Smith
Over three hundred years of tradition may come to an end soon following a decision by Lord Phillips, Master of the Rolls, that the wearing of wigs for judges in the civil courts should be abandoned.

The decision follows Lord Phillips' review of court procedure and is aimed at changing the perception of the public that judges are out of touch. This perception was not improved by the widely-reported case in which a judge asked to be told what the world-wide web was.

Oral Agreement Gives Rise To Property Rights

Sun, 01/07/2007 - 00:00 — Georgina Smith
It is a well-established principle of English law that contracts involving land must be made in writing. However, that is not to say that just because an agreement relating to land is not made in writing, it is unenforceable.

Revised Proposals on Murder

Sun, 01/07/2007 - 00:00 — Georgina Smith

Under the current law, the offence of murder is committed when a person kills with intent or where death is the virtually certain outcome of their behaviour and they are aware of that. It is also murder when a death results from causing serious bodily harm with intent. A conviction for murder can currently be reduced to one of voluntary manslaughter where a defence of provocation or diminished responsibility (where the crime is committed when the person is not fully responsible for their actions) can be made out or where the death was part of a suicide pact.