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July 2008
Issue 13 - Jul 2008 - Personal Liability Of Directors Facing Insolvency
Tue, 01/07/2008 - 01:00 — Georgina SmithIf you are a Director of a company and facing the possibility of insolvency, then steps need to be taken to ensure that your duties are undertaken correctly.
As a Director you may think you have the protection or "shield" of the Limited Liability status, however this is not the case. As a Director of a company you have many duties, which if breached could lead to personal liability both in civil and criminal proceedings.
A Director has a duty to act in the best interests of the company at all times, this is known as a fiduciary duty.
Sex Change Paratrooper Wins Compensation
Tue, 01/07/2008 - 01:00 — Georgina Smith
A former paratrooper who underwent a sex change operation has been awarded £250,000 compensation in an out of court settlement of her claim for sexual discrimination and unfair dismissal. Jan Hamilton, formerly Captain Ian Hamilton, was ordered to attend a compulsory army medical examination in her male uniform. She refused, saying it would have been 'humiliating and demeaning' for her to have to attend dressed as a man.
Outdoor Workers And The Sun
Tue, 01/07/2008 - 01:00 — Georgina Smith
The incidence of skin cancer in the UK has doubled over the last 15 years with over 40,000 new cases diagnosed each year. Skin cancer is almost always caused by exposure to the sun and is therefore preventable.
The Health and Safety at Work Act 1974 requires employers to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work. Therefore, employers with employees who work outside are advised to include in their health and safety policy measures to protect them from harmful exposure to ultraviolet radiation from the sun.
The Health and Safety at Work Act 1974 requires employers to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees at work. Therefore, employers with employees who work outside are advised to include in their health and safety policy measures to protect them from harmful exposure to ultraviolet radiation from the sun.
Hsc And Hse Merger
Tue, 01/07/2008 - 01:00 — Georgina Smith
The Health and Safety Commission (HSC) and the Health and Safety Executive (HSE) have merged to form a single national regulatory body.
Immigration - Tighter New Rules For Skilled Foreign Workers
Tue, 01/07/2008 - 01:00 — Georgina Smith
Following the introduction in February 2008 of the highly-skilled migrants programme - tier 1 under the new Points Based System (PBS) for immigration that will apply to migrants who are not nationals of the European Economic Area or Swiss nationals - the Government has announced strict new criteria that will apply to skilled and temporary workers applying to come to Britain to fill skilled vacancies in the labour market.
Immigration - Sponsorship Under The Points Based System
Tue, 01/07/2008 - 01:00 — Georgina Smith
Under the Points Based System (PBS) for immigration most people applying to come to or remain in the UK to work or study who are not nationals of the European Economic Area (EEA) or Swiss nationals will, in addition to having to meet the criteria set by the PBS of assessment, require a certificate of sponsorship from a licensed sponsor in order to qualify for permission to enter or remain.
Hearing Scheduled On Retirement Age Challenge
Tue, 01/07/2008 - 01:00 — Georgina Smith
Hearing Scheduled on Retirement Age Challenge
The UK Employment Equality (Age) Regulations 2006, which came into force on 1 October 2006, make all retirement ages under 65 illegal unless objectively justified.
The UK Employment Equality (Age) Regulations 2006, which came into force on 1 October 2006, make all retirement ages under 65 illegal unless objectively justified.
Employee Wins Religious Discrimination Claim
Tue, 01/07/2008 - 01:00 — Georgina Smith
Employee Wins Religious Discrimination Claim
Employees are protected under the Employment Equality (Religion or Belief) Regulations 2003 from discrimination by reason of any religion, religious or philosophical belief. There is an exception where belonging to a particular religion or having a particular religious belief is a genuine and determining occupational requirement for a post and it is proportionate to apply the requirement in the particular case.
Employees are protected under the Employment Equality (Religion or Belief) Regulations 2003 from discrimination by reason of any religion, religious or philosophical belief. There is an exception where belonging to a particular religion or having a particular religious belief is a genuine and determining occupational requirement for a post and it is proportionate to apply the requirement in the particular case.
Disability Discrimination - Normal Day-To-Day Activities
Tue, 01/07/2008 - 01:00 — Georgina Smith
Under the Disability Discrimination Act 1995 (DDA), a person has a disability if they have a physical or mental impairment which has a long-term substantial adverse effect on their normal day-to-day activities. The DDA requires employers to make reasonable adjustments to accommodate the needs of disabled employees.
Changes Of Contract Terms And Conditions
Tue, 01/07/2008 - 01:00 — Georgina Smith
Changes of Contract Terms and Conditions
If an employer seeks unilaterally to make changes to the terms and conditions of an employee's contract of employment and the employee is not in agreement with them, it is generally a breach of contract. In serious cases, the employee can have the right to reject the employer's proposals and to resign and claim constructive dismissal. Other options open to the employee are:
to go along with the employer's proposals;
If an employer seeks unilaterally to make changes to the terms and conditions of an employee's contract of employment and the employee is not in agreement with them, it is generally a breach of contract. In serious cases, the employee can have the right to reject the employer's proposals and to resign and claim constructive dismissal. Other options open to the employee are:
Successor Not Comparator
Tue, 01/07/2008 - 01:00 — Georgina Smith
One of the commonly disputed issues in equal pay claims is who is an appropriate comparator for the purposes of deciding if an employer's pay policy has been applied in a discriminatory fashion.
Recently, a claimant sought to use as a comparator a successor to the post, as opposed to a contemporary. The Employment Appeal Tribunal rejected the use of a successor as a comparator as being too hypothetical. Elias P said that the Equal Pay Act "plainly envisages comparison with someone employed at the same time as the claimant."
Recently, a claimant sought to use as a comparator a successor to the post, as opposed to a contemporary. The Employment Appeal Tribunal rejected the use of a successor as a comparator as being too hypothetical. Elias P said that the Equal Pay Act "plainly envisages comparison with someone employed at the same time as the claimant."
Time To Train - Consulatation On Proposed New Right
Tue, 01/07/2008 - 01:00 — Georgina Smith
The Department for Innovation, Universities and Skills has launched a consultation on a proposed new law whereby employees will have the right to request time off work to complete relevant training. It is planned that the new entitlement will apply to all employees who have worked for their employer for a minimum of 26 weeks. It is proposed that requests should be treated in a similar way to those for flexible working, with employers required to give them serious consideration. The consultation closes on 10 September 2008.
Time Off For Dependants - How Long Is Reasonable?
Tue, 01/07/2008 - 01:00 — Georgina Smith
Under Section 57A of the Employment Rights Act 1996, all employees are entitled to take a reasonable amount of unpaid time off work to deal with emergencies involving a dependant and not to be dismissed or victimised for doing so. The emergency must involve a dependant who is a child, parent, husband, wife, civil partner or other household member or somebody for whom the employee has primary caring responsibility.
Tribunal Proceedings - Intimidating Conduct
Tue, 01/07/2008 - 01:00 — Georgina Smith
The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 set out the normal rules for Tribunal proceedings.
Employment Judges have the power, under Rule 18(7)(c), to strike out any claim or response on the grounds that 'the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent...has been scandalous, unreasonable or vexatious'.
Employment Judges have the power, under Rule 18(7)(c), to strike out any claim or response on the grounds that 'the manner in which the proceedings have been conducted by or on behalf of the claimant or the respondent...has been scandalous, unreasonable or vexatious'.
The Rights Of Part-Time Workers - Do They Compare?
Tue, 01/07/2008 - 01:00 — Georgina Smith
The Part-Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 established a minimum standard of fairness for part-time workers to prevent them from being treated less favourably than comparable full-time co-workers, unless the treatment is justified on objective grounds.
Right To Request Flexible Working To Be Extended
Tue, 01/07/2008 - 01:00 — Georgina Smith
Whilst anyone can ask their employer for more flexible working arrangements, at the moment only parents and others (such as guardians) who are responsible for looking after children under the age of six years (or 18 years if the child is disabled) and those with caring responsibilities for adult relatives have the legal right to request to work flexible hours, provided they have worked for their employer for 26 weeks continuously before the application is made. The employer is obliged to take the request seriously.
Restrictive Covenants
Tue, 01/07/2008 - 01:00 — Georgina Smith
It is not uncommon for employment contracts to contain restrictive covenants, intended to protect the employer's business in the event that an employee leaves. However, if these are drafted in such a way that their enforcement would prevent the employee from earning a living, the courts have been apt to strike them out as being unenforceable. A restrictive covenant will only be valid if the employer can show that it does no more than protect the legitimate interests of the business and is reasonable with regard to time and the area it covers.
Redundancy - Definition
Tue, 01/07/2008 - 01:00 — Georgina Smith
In the current economic climate, many businesses will be seeking to cut costs and this could involve making organisational changes or making staff redundant.
In Martland v Co-operative Insurance Society Ltd., the Employment Appeal Tribunal (EAT) considered the question of whether employees who had been dismissed and then refused the new terms and conditions offered to them were redundant and therefore entitled to redundancy payments.
In Martland v Co-operative Insurance Society Ltd., the Employment Appeal Tribunal (EAT) considered the question of whether employees who had been dismissed and then refused the new terms and conditions offered to them were redundant and therefore entitled to redundancy payments.
New Rights For Agency Workers
Tue, 01/07/2008 - 01:00 — Georgina Smith
In recent years there have been several failed attempts by the European Union Council of Ministers to agree on proposals to improve the employment rights of agency workers. In December 2007, the Agency Workers Directive (AWD), giving temporary workers equal pay and conditions, was blocked by a minority of countries including the UK. However, the issue is not going to go away. France, which takes over the EU presidency in July, is in favour of the Directive.
Mental Health In The Workplace
Tue, 01/07/2008 - 01:00 — Georgina Smith
The issue of mental health can be a very difficult one for employers to deal with, but it is one that should not be ignored. The 2006/07 survey of self-reported, work-related illness, published by the Health and Safety Executive (HSE), indicated that approximately 530,000 people in Britain believed that they were experiencing work-related stress at a level that was making them ill. Research commissioned by the Shaw Trust in 2006 estimated that three in every ten employees will have a mental health problem in any one year.
Unfair Dismissal And Alcohol Policy
Tue, 01/07/2008 - 01:00 — Georgina Smith
A recent case serves as a reminder of the importance of circulating and abiding by your internal policies and procedures. The Employment Appeal Tribunal ruled that the dismissal of a council employee who had consumed alcohol whilst on duty was unfair because the council had failed to make known its published alcohol policy and had not followed it when dismissing him (Sinclair v Wandsworth Council).
Acas Consults On Draft Code Of Practice On Discipline And Grievance
Tue, 01/07/2008 - 01:00 — Georgina Smith
The Employment Act 2002 (Dispute Resolution) Regulations 2004, which require employers and employees to operate statutory minimum disciplinary, dismissal and grievance procedures, were intended to give those involved the chance to settle complaints without recourse to litigation. However, the anticipated reduction in the number of tribunal claims did not happen and the procedures have been widely criticised for being poorly drafted and overly complex.
Victory For Licensee In 'Speculation' Case
Tue, 01/07/2008 - 01:00 — Georgina Smith
Victory for Licensee in 'Speculation' Case
Blackburn-based brewery Thwaites, which owns 400 pubs, has won a victory which will bring cheer to licensees, after the Court ruled that a decision by magistrates to cut the opening hours of its Saughall Hotel in Saughall Massie on Merseyside was not based on evidence.
Blackburn-based brewery Thwaites, which owns 400 pubs, has won a victory which will bring cheer to licensees, after the Court ruled that a decision by magistrates to cut the opening hours of its Saughall Hotel in Saughall Massie on Merseyside was not based on evidence.
Employer Repsonsible For Work-Related Suicide
Tue, 01/07/2008 - 01:00 — Georgina SmithEmployees, or their dependants, are entitled to claim damages for injury caused by a workplace accident if:
- There was a duty of care owed to the injured person
- That duty was not performed
- It was reasonably foreseeable that harm would result from a failure to discharge the duty of care
In Corr v IBC Vehicles, the House of Lords ruled that the widow of a man who committed suicide six years after he suffered severe head injuries in a workplace accident should be compensated by his former employer.
Employee Liable For Employer's Losses
Tue, 01/07/2008 - 01:00 — Georgina Smith
Employees who breach their duty of good faith to their employer can be held to account for any resultant losses to the employer, even if the employee has not benefited personally from the breach.
Dealing With Data Loss
Tue, 01/07/2008 - 01:00 — Georgina Smith
The loss of personal data is a regrettably common occurrence. Any organisation which knowingly suffers a loss of data on its customers, suppliers or members (e.g. employees) needs to consider carefully what action to take.
The Information Commissioners Office (ICO) has recently issued guidance for organisations that lose personal data, having reported that it has been notified of nearly 100 such incidents to date.
The Information Commissioners Office (ICO) has recently issued guidance for organisations that lose personal data, having reported that it has been notified of nearly 100 such incidents to date.
Court Warnings For Neds
Tue, 01/07/2008 - 01:00 — Georgina Smith
A Scottish court has spelled out a warning for non-executive directors (NEDs) who are of the view that they are in some way different from 'normal' directors in the eyes of the law.
Contractor And Employer Need Certainty
Tue, 01/07/2008 - 01:00 — Georgina Smith
Construction contracts usually provide for payments to be made in stages, with the amount payable being based on the amount of work certified as complete at the appropriate time. Where project milestones are not met, the contract will normally provide that extensions of time can be given, which can affect the amount of the payment to be made under an interim certificate of work done.
Construction Companies In Price Rigging Row
Tue, 01/07/2008 - 01:00 — Georgina Smith
Following one of the largest ever investigations under the Competition Act 1998, the Office of Fair Trading (OFT) has issued a Statement of Objections (SO) against 112 firms in the construction sector in England that it alleges have engaged in bid rigging activities and, in particular, in 'cover pricing'.
Company Accounts - New Disclosure Requirements
Tue, 01/07/2008 - 01:00 — Georgina Smith
Company Accounts - New Disclosure Requirements
The Companies Act 2006 has led to a number of changes in accounting requirements for companies, chief amongst which are the removal of the need to hold an annual general meeting and the change in the filing deadline for private companies to nine months after their financial year end. Public companies must file their accounts with the Registrar of Companies within six months of the year end and listed companies within four months.
The Companies Act 2006 has led to a number of changes in accounting requirements for companies, chief amongst which are the removal of the need to hold an annual general meeting and the change in the filing deadline for private companies to nine months after their financial year end. Public companies must file their accounts with the Registrar of Companies within six months of the year end and listed companies within four months.
Car Fuel And Vat - Your Options
Tue, 01/07/2008 - 01:00 — Georgina Smith
With car fuel becoming more expensive by the week, the amount of VAT which can be recovered on fuel used for business purposes is also rising.
There are three ways in which car fuel can be dealt with for VAT purposes:
1. The Scale Charge
If fuel is provided for motoring which includes private motoring, a 'fuel scale charge' is paid to HM Revenue and Customs (HMRC) as additional output VAT when the VAT return is submitted. This system favours businesses with employees who do quite a lot of private mileage.
2. The Strict Method
There are three ways in which car fuel can be dealt with for VAT purposes:
1. The Scale Charge
If fuel is provided for motoring which includes private motoring, a 'fuel scale charge' is paid to HM Revenue and Customs (HMRC) as additional output VAT when the VAT return is submitted. This system favours businesses with employees who do quite a lot of private mileage.
2. The Strict Method
Auditors Seeking Limitation Of Liability
Tue, 01/07/2008 - 01:00 — Georgina Smith
It is when times get tough that problems which might have been easy to gloss over in better times start to make themselves visible. When serious problems that have remained undiscovered for a substantial period come to light, a company's auditors may well find themselves facing a writ.
Exclusions Exclude, Rules Court
Tue, 01/07/2008 - 01:00 — Georgina Smith
Two recent cases reaffirm the wisdom of giving careful consideration to the effects of exclusion clauses in insurance policies.
Expense Claims For Foreign Travel - New Rules
Tue, 01/07/2008 - 01:00 — Georgina SmithExpense Claims for Foreign Travel - New Rules
HM Revenue and Customs have published a new set of tables setting out benchmark scales for the claiming of accommodation and subsistence expenses for employees travelling abroad.
These include:
Tax On Capital Gains - How Entrepreneurs' Relief Works
Tue, 01/07/2008 - 01:00 — Georgina Smith
Tax on Capital Gains - How Entrepreneurs' Relief Works
From 6 April 2008 disposals of qualifying businesses and business assets are eligible for Entrepreneurs' Relief.
In simple terms, it allows business owners to reduce their Capital Gains Tax liability to the equivalent of 10 per cent of the chargeable gain.
The following notes will give you some idea of the conditions attached to Entrepreneurs' Relief. The list is not exhaustive.
1. Relief is only available to individuals;
2. Disposal can include all or part of a business;
From 6 April 2008 disposals of qualifying businesses and business assets are eligible for Entrepreneurs' Relief.
In simple terms, it allows business owners to reduce their Capital Gains Tax liability to the equivalent of 10 per cent of the chargeable gain.
The following notes will give you some idea of the conditions attached to Entrepreneurs' Relief. The list is not exhaustive.
1. Relief is only available to individuals;
2. Disposal can include all or part of a business;
Risk Assessments And Routine Activities
Tue, 01/07/2008 - 01:00 — Georgina Smith
Risk Assessments and Routine Activities
Two further cases involving breaches of the Health and Safety at Work etc. Act 1974 have highlighted the need for those with health and safety responsibilities to be vigilant in ensuring that day-to-day tasks are carried out in a way that does not put workers at risk.
Two further cases involving breaches of the Health and Safety at Work etc. Act 1974 have highlighted the need for those with health and safety responsibilities to be vigilant in ensuring that day-to-day tasks are carried out in a way that does not put workers at risk.
Partnership Can Be Prosecuted In Its Own Name
Tue, 01/07/2008 - 01:00 — Georgina Smith
Partnership Can be Prosecuted in its Own Name
A recent decision by the Court of Appeal has established that a partnership can be held liable in criminal proceedings as a separate entity from its individual partners. The individual partners' assets are protected unless complicity or negligence can be shown.
A recent decision by the Court of Appeal has established that a partnership can be held liable in criminal proceedings as a separate entity from its individual partners. The individual partners' assets are protected unless complicity or negligence can be shown.
New Powers For Ico For Data Breaches
Tue, 01/07/2008 - 01:00 — Georgina Smith
New Powers for ICO for Data Breaches
The Information Commissioner's Office (ICO) has been given the power to impose substantial fines on organisations that deliberately or recklessly commit serious breaches of the Data Protection Act (DPA). The new power is granted under the Criminal Justice and Immigration Act, which recently received Royal Assent. Hitherto, the ICO could only issue an enforcement notice against an organisation that was in breach of the DPA.
The Information Commissioner's Office (ICO) has been given the power to impose substantial fines on organisations that deliberately or recklessly commit serious breaches of the Data Protection Act (DPA). The new power is granted under the Criminal Justice and Immigration Act, which recently received Royal Assent. Hitherto, the ICO could only issue an enforcement notice against an organisation that was in breach of the DPA.
New Consumer Protection Laws - A Reminder
Tue, 01/07/2008 - 01:00 — Georgina Smith
New Consumer Protection Laws - A Reminder
Businesses are reminded that the Consumer Protection from Unfair Trading Regulations (CPRs) came into force on 26 May 2008.
Businesses are reminded that the Consumer Protection from Unfair Trading Regulations (CPRs) came into force on 26 May 2008.
Insolvency - Directors Have Benefit Of Doubt
Tue, 01/07/2008 - 01:00 — Georgina Smith
The Insolvency Act 1986 requires that the books and records of an insolvent company must be handed over by the company's officers to the insolvency practitioner appointed to deal with the insolvent company's affairs. Failure to do so is an offence, but there is a statutory defence to the charge, which is available when there is no intent to defraud the creditors. Failure on the part of a director to deliver up to the liquidator all documents belonging to the company that he is required by law to produce can lead to a fine or imprisonment.
Simpler Execution Of Deeds For Companies
Tue, 01/07/2008 - 01:00 — Georgina Smith
Companies can now execute documents under deed without having to have the document signed by two officers (directors or the company secretary) or affixing the company's seal.
Now, provided it is allowed under the company's articles of association, all that is required is the signature of a single director, provided the signature is properly witnessed.
Now, provided it is allowed under the company's articles of association, all that is required is the signature of a single director, provided the signature is properly witnessed.
Hmrc To Target Professional Partnerships
Tue, 01/07/2008 - 01:00 — Georgina Smith
HMRC to Target Professional Partnerships
HM Revenue and Customs (HMRC) have professional partnerships in their sights as the rules relating to the valuation of work in progress for such firms begin to be fully implemented.
HM Revenue and Customs (HMRC) have professional partnerships in their sights as the rules relating to the valuation of work in progress for such firms begin to be fully implemented.
Guidance On Letters Of Intent
Tue, 01/07/2008 - 01:00 — Georgina Smith
Letters of intent are widely used in the building trade, because it is normal for both developer and contractor to wish to make progress on a building project without having to wait until the formal contractual arrangements have been fully agreed. However, letters of intent are fraught with possible pitfalls and have led to a procession of cases coming before the courts. The best way to ensure their successful use is to take advice to ensure the drafting of any documentation is as tight as possible.
Age Discrimination - Young Workers
Tue, 01/07/2008 - 01:00 — Georgina Smith
The Employment Equality (Age) Regulations 2006 make direct and indirect age discrimination illegal in an employment context, unless the treatment can be objectively justified. The legislation applies to discrimination against young as well as older workers.
Recently, a woman who claimed that she was dismissed for being 'too young' won her claim of age discrimination (Wilkinson v Springwell Engineering Limited).
Recently, a woman who claimed that she was dismissed for being 'too young' won her claim of age discrimination (Wilkinson v Springwell Engineering Limited).
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