Many mothers resume work on a part-time basis after having children and employers must be very cautious to ensure that they are not subjected to any unfair detriment. In one case, a woman won the right to substantial compensation after her return to the office was blighted by less favourable treatment.
On returning from maternity leave, the software engineer had been made redundant after her manager reneged on an agreement that she would be permitted to leave at 5:00pm each day to pick up her child from nursery. A new role within the company that she could have applied for as an alternative to redundancy was subject to a requirement that she remain at work after 5:00pm.
After she launched proceedings, an Employment Tribunal (ET) found that she had suffered indirect sex discrimination, harassment and less favourable treatment as a part-time worker. Although the redundancy process was not a sham, the ET also ruled that her dismissal was unfair, having been tainted by discrimination.
In rejecting the company’s appeal against those findings, the Employment Appeal Tribunal could detect no flaw in the ET’s approach. The company’s challenge to a finding of direct sex discrimination – which related to an inappropriate comment allegedly made by a manager on hearing of the woman’s pregnancy – was, however, upheld. The reasoning in support of that finding was deficient and the issue was sent back to the same ET for reconsideration.
The Supreme Court has overturned the decision of the Court of Appeal in a case which will comfort many in the knowledge that challenges to their wills by estranged relatives will be less likely to succeed.
Melita Jackson had been deliberately excluded from the will of her mother, Heather Ilott, who proceeded to leave her entire estate to charity. Ms Jackson challenged the will and, after a lengthy legal battle, the Court of Appeal has assessed the amount of the award payable to her at £164,000.
Ms Jackson had been estranged from her mother for many years. When her mother died aged 70, she brought a claim under the Inheritance (Provision for Family and Dependants) Act 1975. The Act allows a person who has been dependent on someone who has died without including them in their will to make a claim against the estate for 'reasonable provision' to be made for them in order to avoid their becoming destitute. Ms Jackson was awarded £50,000 at her first court appearance, a decision that was upheld by the High Court in 2014.
Mother and daughter became estranged after Ms Jackson left home at the age of 17 to live with a man of whom Ms Ilott disapproved. This caused a rift which was never healed and Ms Ilott took the decision when making her will to leave her entire estate to three animal charities with which she had no particular connection.
However, Ms Jackson was successful in persuading the Court that the Act applied to her – a remarkable result given that the two had had no contact, let alone a relationship involving financial dependency, for years.
The result was portrayed in the popular press as a 'bombshell', robbing the elderly of certainty that their wishes as expressed in their wills would be obeyed. However, the Supreme Court's has rejected the Court of Appeal decision, restoring the ruling of the High Court.
When making a will which excludes a potential beneficiary, it is sensible to ensure that the reasons for so doing are made clear: in this case the main motive appeared to be spite.
For advice on the creation of a will which will give effect to your wishes and resist a challenge by disgruntled potential beneficiary, please contact Tracy Creed on 0121 698 2200, email email@example.com or complete our online enquiry form.
The Trade Union Act 2016, which makes a number of changes to the way in which industrial action is organised, came into force on 1 March 2017.
The Act amends the Trade Union and Labour Relations (Consolidation) Act 1992, including Section 226 on the requirement to hold a ballot before any trade union action.
Under the new regime, a majority vote in favour of industrial action will only be regarded as having the support of a ballot if at least 50 per cent of those entitled to vote did so. Different rules will apply, however, before industrial action in 'important public services' can go ahead; these include the health, fire, transport and border security sectors, plus public education provision to those aged under 17. In such disputes, a further test is to be applied whereby 40 per cent of all eligible union members must vote in favour of the industrial action for it to be legal.
An overview of the Act and information on further changes can be found here
You have to be in possession of your faculties to make a valid will and that is one reason why you should not delay in asking a solicitor to help you put your affairs in order. In one case, a man’s execution of his will less than two months before his death from cancer gave rise to a High Court dispute between his relatives.
By his will, the man gave his widow the right to live in the matrimonial home free of rent for so long as she wished or until she began to cohabit. However, he appointed a daughter from a previous marriage as executor of his will and bequeathed to her the remainder of his estate save for a few keepsakes.
In challenging the will, the widow pointed out that, due to his illness, he was taking a number of powerful pain-relieving and other drugs when he signed the will. He was said to have exhibited confused and irrational behaviour and to have made unwarranted accusations of domestic abuse against her.
After hearing lay and expert evidence, however, the Court found that the man had the legal capacity required to make a valid will and had known and approved of its contents. Although he was likely to have suffered from opiate toxicity, that had not poisoned his affections or robbed him of the ability to discern right from wrong. However ill-founded his antagonism to his wife may have been, he was not precluded from arriving at a rational, fair and just testament.
Legal and beneficial ownership of company shares are two very different concepts and, as one case strikingly showed, family judges have the power to look behind the corporate veil in ensuring a fair division of assets between divorcing couples.
The case concerned a group of companies that had been established by a highly successful businessman. A restructuring of his business affairs had resulted in shares in the group being placed in the legal ownership of members of his family. Following the end of his seven-year marriage, his ex-wife sought financial provision from him and argued that he was the beneficial owner of the shares.
In ruling on that issue, the High Court noted that the businessman was part of a close family whose members looked after each other. The restructuring was not a sham and was not motivated by a desire to reduce his wife’s entitlements. However, the businessman’s statement that he was running the group solely for the benefit of other members of his family was a blatant lie.
He had never intended to part with control of the business and, in the circumstances, the Court found that the other family members held their shares solely as nominees, or bare trustees, for his benefit. He was the 100 per cent beneficial owner of the group, its underlying companies and its assets.
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: 28 March 2017
Time: 1.00 pm
Sydney Mitchell LLP
336 Stratford Road,
Solihull, B90 3DN
RSVP: JADE LINTON
Leading West Midlands’ law firm Sydney Mitchell celebrated their 9th successful quiz, raising over £2000 for its nominated charities; the Birmingham Women’s Hospital Charity and the Maria Watt Foundation. Over 60 people took part in the action packed Quiz with Stoo Pittaway as Guest Quizmaster. It was a fast and furious event with a few twists. Teams were able to buy chance cards, giving teams the opportunity to add or deduct 10-30 points during the competition.
The winner of the much coveted Sydney Mitchell Charity Quiz Trophy for 2017 was Poppleton & Appleby Insolvency Practitioners, closely followed by Dains Chartered Accountants and Merito Financial Services in second and third places respectively. The winning team name was ‘You’re a Quizzard Harry!’ won by Dains.”
Kam Majevadia, Sydney Mitchell Partner, commented:
"What a fun and exciting event with lots of twists and surprises. We raised over £2000 again from entry fees, raffle and the Chance Cards sold. We thank everyone for their support and in particular Brewin Dolphin for their donation and Park Regis for their generous raffle prizes. Certainly a great event and one we are bursting to do again next year!”
“The Birmingham Women’s Hospital Neonatal "Tiny Babies, Big Appeal" is the Neonatal appeal at Birmingham Women's Hospital. All donations will help care for sick and premature babies, not just in Birmingham but throughout the West Midlands.”
“The Maria Watt Foundation is a local charity whose aim is to promote understanding about leukemia and other cancers affecting children, teenagers and young adults. This was set up in 2005 by Diane Watt after the tragic loss of her daughter Maria who had planned to go to university to become a lawyer.
“We will be continuing in our fundraising efforts for our charities during 2017.”
Eileen Rock, Fundraising Manager of the Birmingham Women's Hospital Charity, said:
“A big ‘thank you’ to Sydney Mitchell for its continued support of our Neonatal Unit; the money raised will be used to help sick and premature babies who are cared for at Birmingham Women’s Hospital. Thank you to all who supported the event.”
Diane Watt, Founder of the Maria Watt Foundation, added:
“Our thanks as always go to everyone who supports Sydney Mitchell in their amazing fundraising throughout the year.”
Sydney Mitchell is a Midlands based award winning law firm, with offices in Birmingham City Centre, Sheldon and Shirley with additional facilities in Sutton Coldfield. Offering a range of specialist legal services for both businesses and individuals, Sydney Mitchell is listed in the Top Tier of the Legal 500, Lexcel accredited and won the Law Firm of the Year in 2015, 2014, 2013, 2011 and 2008 (5-15 partners) in the Birmingham Law Society Legal Awards.
The firm’s 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.
- Poppleton & Appleby; Mark Monaghan, Sharon Hill and Laura Tilson, Kam Majevadia
- Dains; Hoan Nguyen, Richard Pugh, Jack Davis and Ian Monks
- Merito Financial Services: David Fleet, Martin Crutchley, Jonathan Hearn. Rob Kenyon, Kam Majevadia
About the Birmingham Women’s Hospital ‘BWH’ – Neonatal appeal
BWH Charity supports the work of Birmingham Women's Hospital. They fundraise to provide vital equipment and facilities to enable the best possible care for the women and babies of the West Midlands region. The Birmingham Women’s Hospital Neonatal "Tiny Babies, Big Appeal" is the Neonatal appeal at Birmingham Women's Hospital. All donations will help care for sick and premature babies, not just in Birmingham but throughout the West Midlands. For more information on how you can help support the “Tiny Babies, Big Appeal” please email firstname.lastname@example.org or call Fundraising Office on 0121 623 6874
Birmingham Women's Hospital Charity Registration No. 1089035
About Maria Watt
Maria Watt Foundation raises funds to support specific projects such as the recent development of a Teenage Cancer Unit at Birmingham Children’s Hospital. They are also actively involved in raising awareness of the early signs of childhood cancer working with schools and GPs. Support is also given to the Beads of Courage Programme which helps to decrease illness related stress through using positive coping strategies to help children suffering serious illness.
The Maria Watt Foundation is an independently registered charity no. 1118733 and can be contacted at: Diane Watt, Maria Watt Foundation, 14 Radlow Crescent, Marston Green, Birmingham, B37 7LZ
Road accident victims can sometimes face a hard struggle to win just compensation from negligent motorists. However, specialist law firms do not easily give up the fight. In one case, lawyers representing a gravely injured cyclist won her the right to seven-figure damages after her life was ruined by a left-turning lorry.
The woman suffered three cardiac arrests and was unconscious for a month, in intensive care for 12 weeks and in hospital for 15 months following the accident. Catastrophic head injuries have left her intellectually impaired, wheelchair dependent and in need of 24-hour care.
Following a trial of her claim, a judge found the lorry driver 70 per cent to blame for the collision. He had been stationary, intending to turn left at a junction, but his vehicle had straddled two lanes. His indicator light had been masked from the cyclist’s view and he had not taken enough care in checking his mirrors.
In rejecting a challenge to those findings, the Court of Appeal noted that the lorry, due to its size and bulk, represented a grave danger to other road users, particularly cyclists. The judge had been entitled to conclude that, by the time the lorry began to turn left, it was too late for the woman to avoid the collision. The amount of her compensation has yet to be assessed but, given the extent of her disabilities, it is bound to be a seven-figure sum.
Last year, the Court of Appeal upheld the view of the Employment Tribunal (ET) and the Employment Appeal Tribunal (EAT) that the Working Time Regulations 1998 can be interpreted so as to conform with EU law in respect of holiday pay (British Gas Trading Limited v Lock and Another).
Mr Lock's normal pay included a commission based on sales in the previous month, and this represented on average more than 60 per cent of his remuneration. As he could not achieve sales whilst on annual holiday, this meant that his pay for the month following was lower than usual. His claim for unlawful deduction from wages was upheld by the ET and the EAT.
In dismissing British Gas's appeal, the Court affirmed the position that holiday pay of just basic salary on its own is not sufficient if this is not the worker's normal remuneration, which was defined in British Airways plc v Williams and Others as remuneration that is 'linked intrinsically to the performance of the tasks which the worker is contractually required to carry out under his contract of employment and in respect of which a monetary amount is provided'.
The Court was, however, at pains to stress that its function was to do no more than deal with the current appeal and its ruling was confined to the particular facts of Mr Lock's case. Different facts might result in different outcomes. In addition, the Court was silent on the appropriate reference period for the calculation of the holiday pay.
The Court acknowledged that its decision leaves unanswered questions, but said that 'nothing in this judgment is intended to answer them'.
British Gas had sought leave to appeal against the Court of Appeal's ruling but permission has been refused by the Supreme Court.
The case will therefore be remitted to the ET to calculate the level of compensation payable.
If your business is affected by recent decisions regarding holiday pay and you would like advice on your individual circumstances, contact us.
When selling or leasing property it is absolutely vital to answer pre-contract enquiries accurately and the consequences of not doing so can be severe indeed. In one case, a Tenant of warehouse premises was awarded seven-figure compensation after asbestos was discovered shortly after the Lease was signed.
In reply to the Tenant’s enquiries prior to execution of the Lease, the Landlord stated that it was unaware of any environmental problems relating to the premises. The Landlord had in fact received an email from a specialist firm which reported a health and safety risk arising from the presence of asbestos. Soon after the Lease was signed, the Tenant discovered the asbestos problem and very substantial remedial works were required before it could take up occupation.
The High Court acknowledged that Landlords do not generally warrant the state or condition of premises before they are let and that it is for Tenants to make their own enquiries, by survey or otherwise. However, the statement that the Landlord knew nothing of any environmental issues, when they had in their possession information that clearly pointed to a serious problem, amounted to a misrepresentation.
A term of the Lease stated that the Tenant acknowledged that the Lease had not been entered into in reliance on any statement or representation made by the Landlord. However, the Court found that that provision was highly unreasonable and did not enable the Landlord to escape liability.
The Tenant was awarded the costs of the remedial works and of arranging alternative warehouse accommodation during the period that it took to complete them.
It is important to understand that once a Tenant takes occupation of premises, it will be obliged to comply with all statutory obligations in relation to its use and occupation of the premises, including the obligations under the Control of Asbestos at Work Regulations.
It is imperative therefore for a potential Tenant (or Purchaser) to be provided with an Asbestos Report as it will become the “dutyholder” under the Regulations (because it will then have control of the premises).
This means that it must take all reasonable steps to determine the location and condition of materials likely to be asbestos containing materials, keep an up to date written register of any asbestos containing materials and monitor their conditions, assess the risk of anyone being exposed to fibre from asbestos containing materials, prepare a plan setting out how the risks posed by the asbestos containing materials are to be managed and put the plan into action, review and monitor it periodically. If there are asbestos containing materials in the premises, the Tenant (or owner) must provide information on the location and condition of any such materials to anyone who is likely to work on them or disturb them e.g. employees or contractors who carry out work at the premises.
The Regulations apply to occupied and vacant (and even derelict) premises.
There are two important messages in this story:
1. As a Landlord (or Seller), you must reply to pre-contract enquiries honestly and provide the information that you have in your possession.
2. As a Tenant (or Purchaser), you must comply with the obligations as “dutyholder” in the Regulations from the date of occupation/ownership. As well as being a contractual breach of the Lease by the Tenant, a failure to comply with the Regulations can result in substantial penalties, which is a criminal offence, punishable in the Magistrates Court with a fine of up to £20,000 and/or imprisonment for up to six months and, where there is a more serious breach, in the Crown Court, by an unlimited fine and/or imprisonment of up to two years. Personal liability can also attach to directors and officers, where breaches have been committed by their company with their consent, connivance or neglect.