Are you afraid to tell a Solicitor everything?  Well now don’t be!

Conversations had with a solicitor, with the aim being to achieve a compromise to a legal dispute, is generally ‘without prejudice’ and any admission made cannot be relied upon in Court. 

The usual without prejudice rule generally prevents any statements made in a genuine attempt to settle an existing dispute, whether made in writing or orally, from being put before the Court in evidence of admissions against the interest of the party that has made them.

This issue was recently highlighted when it came before the Court when a landlord of a restaurant had forfeited the lease by re-entering the premises and changing the locks.  The tenants denied that their rent was in arrears and claimed that the lease had been wrongly forfeited. 

Before the matter came to Court, one of the tenants had twice made appointments with the landlord’s solicitor, during which she was said to have made an admission which was damaging to their case.  The landlord sought to rely on this, and the judge at first instance found in favour of the landlord and the tenants were ordered to pay almost £6,000 in outstanding rent.  The judge took account of the tenant’s alleged admissions on the basis that her meetings with the solicitor did not benefit from without prejudice privilege. 

The tenants appealed to the Court of Appeal where the Appeal Court analysed the extent of that rule in the context of a landlord and tenant dispute.  The Appeal Court allowed the tenant’s appeal and found on evidence that the purpose of the meetings was to find some way of settling the litigation dispute.  The words the tenant spoke to the landlords solicitor were privileged and, on the face of it, inadmissible in Court. 

In the circumstances, the Court directed a retrial of the action before a different Judge.

This means, you can now freely discuss matters with a solicitor, even if that solicitor is not your own solicitor, without the fear of comeback or those discussions being brought before the Court later to be used against the party that made them.

For advice on this topic or commercial property matters contact Sundeep Bilkhu on 0121 698 2200, email s.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

 

Although the exit negotiations will be lengthy after the UK Government formally begins the withdrawal process from the EU and nothing will change in law for two years, businesses will need to plan ahead for the eventuality.

Assuming a free trade agreement is negotiated between the UK and the EU, the UK will need to continue to comply with many aspects of EU law. For example, much of UK employment and environmental law stems from the EU and often goes beyond EU law in terms of protection for workers’ rights and the environment. In practice, little change is to be expected.

However, there are specific issues that UK businesses should be thinking about, which include:Brexit - important planning for businesses - Sydney Mitchell Solicitors 0121 698 2200

  • VAT compliance. The present system of VAT recovery and compliance is likely to change, as VAT will be recovered for EU acquisitions under Article 13 of the relevant Directive, rather than Article 8. In practice, this means that recovering VAT incurred in EU countries may well take considerably longer after Brexit. It is also possible that multiple VAT registrations will be required in different EU countries. This may pose a substantial additional compliance cost
  • The European Company (also known by its Latin name Societas Europaea or SE). UK businesses using the European Company vehicle will wish to consider its suitability in changed circumstances
  • Intellectual Property. At the moment, trademarks can be obtained on a community-wide basis through the use of the ‘registered Community design’ and ‘European Union trade mark’, which have EU-wide effect. It remains to be seen how this will work in practice for UK-based businesses after Brexit, although it will clearly be in both sides' interests to preserve a very similar system, which is the outcome of many years’ negotiation
  • Debt Collection. At present there is a simplified procedure for the enforcement of debts across the EU. It remains to be seen if this will be preserved. If not, this may be a reason to set up a trading location within the EU to manage sales to EU businesses

At this stage, it is important to remember that nothing substantial will happen for at least two years. However, Brexit may have implications for future plans and business structures and it will be important to consider your options – especially if you have substantial business relations with entities in other EU countries – and be prepared for the likely eventualities.

We can provide advice specific to your business circumstances and will keep you abreast of changes likely to affect you.

If you would like to discuss this or any other business related matters, please contact Fahmida Ismail, John Irving or Roy Colaba on 0121 698 2200

 

PSC Register - The Law is changing for ALL Companies incorporated in the UK!

You are affected if you are either;

  • A UK incorporated company (including dormant companies, companies limited by shares, companies limited by guarantee and unlimited companies)
  • A Societates Europaeae (SEs)
  • A Limited Liability Partnerships (LLPs)

What’s happening?

From 6 April 2016, companies will be required to keep a register of People who have Significant Control (PSC) within a company. What’s more is that from 30 People who have significant control register - act now - call 0121 746 3300June 2016, details of all PSCs will need to be registered at Companies House on the form succeeding the Annual Return. The purpose of this is so that the UK can increase its transparency over who owns and runs our companies.

With this deadline soon arriving, companies will need to take action immediately to compile their PSC register and make it available for inspection on request at the company’s registered office.

Failure to provide accurate information on the PSC register and failure to comply with any notices requiring an individual to provide information are criminal offences which could result in a fine or prison sentence of up to two years.

If you are a Company and would like advice on the new regulations or any of our other services – speak to John Irving or Roy Colaba in our Company and Commercial Department on 0121 698 2200.

More information about the PSC Register

The Stableford Competition will begin with a Shotgun start at 1pm. Registration, tea, coffee and bacon sandwiches will be from 12 noon onwards aiming to finish at 5 pm. 

Sydney Mitchell Charity Golf Day 26 September 2016 Ladbrook Park

A buffet will be served from 5.30 pm and prizes awarded at 6.30 pm.

PRIZES

  • 1st Prize
  • 2nd Prize
  • 3rd Prize
  • Longest drive
  • Nearest pin
  • Hole in One - £5000 holiday
  • Raffle prizes

You will be able to enter either a team or individually and the cost will be £280 plus VAT (£336) per team or £70 per person plus VAT (£84). Please ensure you complete your handicap so that we can match you with appropriate players.

SPONSORSHIP

It is also possible for you as individuals or companies to sponsor a hole, please contact Linda Heyworth (l.heyworth@sydneymitchell.co.uk) for further details.  £350 sponsorship per hole.

OUR NOMINATED CHARITIES

Our two nominated charities are the Maria Watt Foundation and the Birmingham Women’s Hospital Charity; two worthy causes so your involvement and sponsorship is very important.  If anyone wishes to donate prizes for the raffle they will be gratefully received. If you are unable to play but would like to support there is a donation option on the booking form.

Read more about our charities...

http://www.mariawattfoundation.co.uk/

http://www.bwnft.nhs.uk/support-us/hospital-charities 

LIMITED AVAILABILITY

Places will be confirmed on receipt of payment. Please complete the booking from and complete your payment online.

We do hope you will be able to attend and we look forward to welcoming you for what we are sure will be an enjoyable and exciting event.

BOOKING DETAILS AND LINK…

https://sydney_mitchell_llp_charity_golf_day_2016.eventbrite.co.uk

 

Article 8 of the European Convention on Human Rights (ECHR) provides that everyone has the right to respect for their private and family life, their home and their correspondence. Public authorities, such as an NHS Trust and the Employment Tribunal (ET), are required to act in a way that is compatible with the ECHR. Guidance on how ETs should deal with Article 8 in the context of unfair dismissal cases was given by LJ Mummery in the Court of Appeal in X v Y. In such cases, the ET should first consider whether or not the right in question is 'engaged', in the sense of being 'relevant'. If the answer to that question is 'no', there is no need to go on to deal with the question of any possible breach of the ECHR.

In Garamukanwa v Solent NHS Trust, the Employment Appeal Tribunal (EAT) has upheld the ET's decision that Article 8 was not engaged when, in the course of a disciplinary investigation, an employer made use of emails sent by one of its employees to a work colleague that had been seized by the police in the course of gathering evidence for a possible criminal investigation.

Mr Garamukanwa, a clinical manager working for Solent NHS Trust, had formed a personal relationship with Ms Maclean, a staff nurse at the hospital where he worked. When their relationship ended, he suspected that she had formed a relationship with Ms Smith, a healthcare support worker on the same ward. Mr Garamukanwa expressed the view that Ms Maclean's relationship with a junior member of staff could produce a conflict of interest between patient care and emotional priorities and had emailed a friend of Ms Maclean's raising his concerns. The friend told him to 'leave her in peace'.

There followed a number of activities by someone who appeared to have a vendetta against Ms Maclean and Ms Smith. A fake Facebook account was set up in Ms Smith's name and anonymous emails that were malicious in nature were sent from various bogus email addresses. These showed that the author was aware of the women's activities and Ms Maclean became concerned that Mr Garamukanwa was stalking her. After a further email containing unpleasant personal comments was sent to a large number of members of staff, Ms Maclean went to the police. Whilst the police investigation was ongoing, Mr Garamukanwa, who denied any involvement in the malicious activity, was suspended on full pay.

The police decided not to bring any charges but the Trust decided to carry out its own investigation into the matter. A person not involved in the events, Mrs Burton, was brought in to carry out the investigation and was given permission by the police to use evidence that they had gathered. Of particular interest were photographs on Mr Garamukanwa's phone, one of which contained details of the email addresses from which the malicious emails had been sent and for which he could provide no reasonable explanation. Mrs Burton concluded that there was sufficient evidence to link him to the emails and he was dismissed for gross misconduct.

Mr Garamukanwa brought claims of unfair dismissal, unlawful race discrimination, victimisation, harassment and wrongful dismissal, all of which were dismissed. In the course of proceedings, he argued that the Trust had acted in breach of Article 8 because it had used evidence that related to matters that were essentially private in reaching its decision to dismiss him. However, the ET ruled that Article 8 was not engaged.

Mr Garamukanwa appealed against that decision, arguing that whilst the police had a right to examine material that was private and personal, his employer did not.

The EAT dismissed the appeal. The ET had approached the matter in accordance with the guidance given in X v Y and had made concrete findings of fact that the anonymous emails had impacted on work-related matters, were sent to the work addresses of the recipients and dealt in part with work-related issues. Furthermore, the sending of those emails had an adverse effect on other employees to whom the Trust owed a duty of care. These were all features that entitled the ET to conclude that Article 8 was not relevant in the circumstances because Mr Garamukanwa had no reasonable expectation of privacy in respect of the material.

Permission to appeal to the Court of Appeal was refused.

For further information on employment law matters, please contact one of the employment law team or contact Tina Chander on 0121 698 2200 t.chander@sydneymitchell.co.uk or fill in our online enquiry form.

 

 

You are invited to a
Sydney Mitchell LLP …
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.

Changing terms of employment: overview

In this month’s Forum there will be an active discussion on Changing terms of employment, including:

  • Contractual right to vary
  • Implementing a binding change in terms
  • Information and consultation obligations
  • Discriminatory changes
  • Section 1 statement of terms

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:

23 June 2016

Time:
1.00 pm

Where:
Sydney Mitchell LLP
336/346 Stratford Road,
Shirley,
Solihull, B90 3DN

Book direct with:
JADE LINTON
 j.linton@sydneymitchell.co.uk 

HR Forum Sydney Mitchel LLP

 
Book direct with Jade Linton j.linton@sydneymitchell.co.uk  

 

 

It is a popular misconception that all debtors need to do to avoid their creditors is to transfer their assets to someone else. The fallacy of that belief was shown by a High Court case involving a businessman who moved property, cars and cash to his estranged wife in a fruitless attempt to escape his liabilities.

Investors in the businessman’s failed financial scheme had obtained a judgment against him for 2.5 million dollars and sought to enforce that debt against various assets, which had been given to his wife or placed in her name. It was submitted that the transfers were at an undervalue, within the meaning of Section 423 of the Insolvency Act 1986, and were designed to put the assets out of his creditors’ reach.

The Court upheld the investors’ arguments in respect of a number of residential properties, cars – including an Aston Martin – and various cash sums and other benefits which had been passed from husband to wife. The latter’s plea that the car was a wedding anniversary gift, and that other assets had been moved to her as part of an informal separation agreement, were rejected.

The ruling opened the way for the investors to enforce the debt against the assets which had been gifted by the businessman to his wife for no consideration. However, the Court exercised its discretion to allow the wife to retain £100,000 of the relevant sum so that she would have the opportunity to re-settle herself and to pay for the completion of her daughter’s education.

For further information on this article, please contact Leanne Schneider-Rose on 0121 698 2200, email l.schneider-rose@sydney mitchell.co.uk or fill in our online enquiry form.

A recent case (The Governing Body of Binfield Church of England Primary School v Roll) examined how the number of hours worked by an 'on call' employee should be calculated in the context of the National Minimum Wage.

Mr Roll was employed as a school security guard. He was required to live on the school premises and to respond to alarm calls day and night.

Although his contract of employment stated that his normal working week would be 39 hours with the possibility of further hours paid as overtime, Mr Roll argued that he was, in practice, on call 24 hours a day, including at weekends. He was obliged to live in a bungalow in the school grounds and had been issued with a mobile phone that was linked to the school's alarm system, to which he was required to respond at all times.

The Employment Tribunal (ET) upheld his complaint that he had suffered unauthorised deductions from his wages and the school's governors were ordered to pay him more than £80,000 in compensation. That was on the basis that, when all of his working hours were computed, he had been paid less than the hourly rate required by the National Minimum Wage Regulations 1999.

In upholding the governors' challenge to that decision, however, the Employment Appeal Tribunal (EAT) found that the ET had failed to take into account a number of factors that ought to have been explained. Amongst other things, the school would never have disciplined Mr Roll for being away from the premises outside his shift periods.

When not on shift, he was permitted to absent himself from the school so long as he was sufficiently nearby to deal with any emergencies which might arise. He was able to, and did, attend social functions off the school's premises, even if he might be called back from those functions, and he was able to go away at weekends, provided notice was given, without taking that period as holiday.

In addition, the school was under no statutory duty to have someone on the premises at all times, and emergencies in fact arose quite rarely.

In those circumstances, the matter was remitted to the same ET to consider whether those factors were material.

For more information on this or any other employment matter, please contact Jade Linton on 0121 746 3300 or email j.linton@sydneymitchell.co.uk

The 2016 UEFA European Championship takes place in France, with the group stages commencing on the evening of Friday, 10 June at 20:00, when France play Romania in Paris. Wales and England are both in group B and play their first matches on Saturday, 11 June at 17:00 and 20:00 respectively. Northern Ireland have their first Group C match on Sunday, 12 June at 17:00. The final is scheduled for Sunday, 10 July.

European Football _Sydney Mitchell Solicitors Employment Law SpecialistsEmployers who have not already done so should ensure they have policies in place to deal with any issues that could arise and that employees fully understand them.

To help employers achieve a balance between flexibility and productivity in a way that is consistent and fair to all members of staff, the Advisory, Conciliation and Arbitration Service has published guidance covering the main issues. These are likely to be:

  • last-minute requests for annual leave;
  • sickness absence; and
  • Internet and social media use during working hours.

If you are considering adopting flexible working arrangements, it is important that these do not discriminate against staff who support teams other than the home nations. Many workers from abroad will be supporting their own national teams. Nor should any arrangements made have an adverse effect on workers who have no interest in football.

The guidance can be found at

http://www.acas.org.uk/index.aspx?articleid=5746.

A full list of the fixtures can be found at

http://www.uefa.com/uefaeuro/season=2016/matches/#md/1.

For advice on any employment law matters, please contact one of the employment law team or contact Tina Chander on 0121 698 2200 t.chander@sydneymitchell.co.uk

 

In a stern warning shot across the bows of parents tempted to use high tech listening devices to spy on their children, a father who placed ‘bugs’ in his daughter’s school uniform in the midst of a bitter residency dispute paid the price when a judge ruled that the little girl should live with her mother.

Tiny recording devices – which could be bought for a few pounds on the Internet – were sewn into the pockets of the girl's blazer and raincoat by the man's partner. For nearly two years, much of what she said to her social worker, as well as her school friends and teachers, was recorded without her knowledge and typed up into a transcript which ran to more than 100 pages.

The judge observed that it hardly needed saying that covertly recording children’s conversation could almost never be justified. Whilst stopping short of ruling that what the couple did was illegal, he said that the bugging operation had further damaged relations between the adults in the girl’s life and underlined the father's inability to trust social workers.

It was extremely damaging to the girl and it was not hard to imagine the reaction of other parents at the girl’s school if they were to learn that their children had been recorded as a result of talking to her, or even being near her. The discovery of the secret surveillance was a prominent factor in the judge’s ruling that the father and his partner could not meet the girl's emotional needs.

For further information on this article or related family issues, please contact Amanda Holland on 0121 698 2200, email a.holland@sydneymitchell.co.uk or fill in our online enquiry form.

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