Wise employers intent on avoiding discrimination make every allowance for workers’ religious beliefs. However, in one striking case, a tribunal ruled that that did not extend to granting a Roman Catholic transport worker more than a month off every summer so that he could attend religious festivals in the land of his birth.
The man had in the past been permitted to take five consecutive weeks’ holiday so that he could join his family during the festival season in Sardinia. He said the saint day festivals were very dear to him and of great religious significance. However, following a change in management, he was informed that he would in future only be permitted 15 days’ consecutive leave. That prompted his complaint of indirect religious discrimination to an Employment Tribunal (ET).
It was agreed that participation in the festivals might constitute a manifestation of the man’s religious beliefs. However, in dismissing his claim, the ET found that he was not genuine in asserting that he required five weeks off work annually in order to attend them. His true reason for wanting such lengthy periods of continuous leave was his wish to spend time with his family.
In rejecting his challenge to that decision, the Employment Appeal Tribunal found that the ET’s conclusions were permissible on the evidence. It had not embarked on an evaluation of the validity of the man’s beliefs but had rightly focused on whether or not his assertion that he required to attend the festivals over a specific five-week period for religious reasons was made in good faith.
Housebuilding on green fields can be intensely controversial but objections often have to give way before the ever-widening gap between supply and demand. In one case that illustrated the point, the High Court opened the way for construction of 377 new homes close to an area of outstanding natural beauty.
The local authority acknowledged that it did not have a five-year supply of available housing land and that, given that shortfall, the scheme was sustainable, within the meaning of the National Planning Policy Framework. It granted permission despite having received over 700 letters of objection to the plans.
A campaign group that was said to represent over 1,000 local residents mounted a judicial review challenge to the permission. However, in rejecting their complaints, the Court found that the officer’s report upon which the council’s planning committee had based its decision was unimpeachable.
Pre-nuptial agreements may not always lead to fair outcomes but they are generally valid if entered into freely. In one ‘big money’ divorce case exactly on point, the High Court had no power to award a wife half of a marital fortune approaching £11 million even though she had made an equal contribution to its accumulation.
The Scandinavian couple had been married for six years and had two children. He had earned very substantial sums as a professional sportsman and, despite having retired, still enjoyed an income of about £350,000 a year. The marital assets were valued at over £10.8 million, principally made up of equity of about £1.8 million in the former matrimonial home and bank accounts and shares worth £9 million. However, apart from her half share in the home in England that she still occupied with the children, the wife had no resources at all in her own name.
Prior to their marriage, the couple had signed a series of three pre-nuptial agreements, the effect of which was that, on divorce, each of them would retain his and her respective separate property. That meant that the wife was not entitled to claim any capital payment from the husband. The agreements also provided that a court in Stockholm would have exclusive jurisdiction to resolve any disputes arising.
The Court described the husband’s attitude to his children and former wife as mean-spirited. Given the length of the marriage, and the wife’s equal contribution to the generation of the family wealth, it was clearly unfair that she should be left with almost nothing. In finding the agreements valid, however, the Court rejected arguments that the wife’s signatures had been procured by the husband by misrepresentation or the application of undue pressure.
In the circumstances, the Court’s jurisdiction was tightly constrained and it was obliged to deal with the case on the basis of the needs of the wife and children, rather than the sharing principle that would otherwise have applied. The Court could not rule on the wife’s lump sum and maintenance claims until after the court in Stockholm had resolved such issues or declined to do so.
The Court directed the sale of the family home, to which the wife was deeply attached, and the equal division of the proceeds. The husband was ordered to make a sum of £2 million available to re-house the wife and children until a year after the latter ceased full-time education. He was also required to pay a carer’s allowance to the wife and periodical payments to the children, totalling £95,000 a year. Noting that the husband has money to spare, the Court urged him to consider settling the dispute in order to bring an end to the family’s agony.
Landlords court disaster if they fail to take legal advice before granting a tenancy. If ever there was a case that proved the point it must be that of a property company that wished to grant a lease for a year but inadvertently granted one for 2,000 years.
The company had granted a tenancy of an industrial unit which on the face of it was for just one year, with provision for renewal on the same terms. However it was, in law, a perpetually renewable lease and, by operation of the Law of Property Act 1922, it was automatically converted into a 2,000-year lease. The company preferred to use a simple form when granting short-term leases and the document, which ran to just two pages, had been executed without legal advice.
The First-tier Tribunal (FTT) noted longstanding judicial reluctance to find that leases are perpetually renewable, not least because they are commonly entered into by mistake, make little business sense and represent a windfall for the tenant. On the clear wording of the document, however, that is what it was.
Coming to the company’s aid, however, the FTT found that the tenants had been aware of the error and had set out to create a trap into which the company fell. It thus had no hesitation in rectifying the lease, which would henceforth provide that it would no longer be renewable after it had run for three years.F
The Ministry of Justice has published its long-awaited review of the impact of Employment Tribunal (ET) fees, which were introduced in July 2013.
Whilst the review does identify some areas for concern, it concludes that, on the whole, the objectives for the introduction of fees – i.e. transferring a proportion of the cost from the taxpayer to users of the service who can afford to pay and encouraging the use of the Advisory, Conciliation and Arbitration Service's free Early Conciliation service and other mediation services, whilst at the same time protecting access to justice – have broadly been met, and 'while it is clear that fees have discouraged people from bringing claims, there is no evidence that they have prevented them from doing so'.
As a result of the findings, certain proceedings relating to payments made from the National Insurance Fund will be exempt from ET fees with immediate effect. These include claims in respect of a redundancy payment where the employer is insolvent. In addition, a consultation document has been published seeking views on the review's findings and on a proposal to raise the gross monthly income threshold for fee remission. Views are sought by 14 March 2017.
The TUC has criticised the report, accusing the Government of 'turning a blind eye' to the impact of ET fees. General Secretary Frances O’Grady said, “Until the Government commits to abolishing fees its commitment to ‘improve workers' rights’ in post-Brexit Britain looks pretty hollow.”
The challenge to the fee system brought by the trade union Unison is due to be heard in the Supreme Court on 27 and 28 March 2017.
Many housing estates, particularly those built in the 1960s, are looking tired and no longer meet modern living requirements. However, as one High Court case showed, their regeneration presents a major challenge for local authorities.
The case concerned a low density urban estate of 360 homes that was considered a model of its kind when it was built more than 50 years ago. However, in the modern era, the condition of some of the homes had declined and the local council viewed the estate as excessively costly to manage and maintain.
A programme of refurbishment would not remedy intrinsic problems in its design, including its large number of staircases that created accessibility problems for disabled people. The council ultimately resolved to establish a special purpose vehicle with the objective of demolishing the entire estate and building 464 new homes on the site.
In dismissing one resident’s judicial review challenge to that decision, the Court noted that residents had been extensively consulted in respect of various options, including refurbishment. Arguments that councillors had been materially misled by an officer’s report in respect of financial aspects of the project fell on fallow ground, as did submissions that the estate’s demolition would breach residents’ human right to peacefully enjoy their private property.
Owners of listed buildings are entrusted to keep them in a reasonable state of repair and a failure to do so can have grave consequences. In one case, a woman whose 17th century manor house had fallen into a state of near-dereliction received just £125,000 in compensation following its compulsory purchase.
The condition of the architecturally important property had descended to the point where the local authority for the area felt that it had no choice but to exercise its powers of compulsory acquisition. It was said to be infested by dry rot and close to collapse. The council had sold the property on to an eminent architectural historian who had set his heart on restoring it to its former glory.
After being deprived of her property, the woman argued that she should receive £360,000 in compensation from the council. In ruling on her case, the Upper Tribunal accepted that, in a modernised condition, the property would be worth up to £800,000. That sum was, however, exceeded by the estimated £1.2 million cost of restoration.
If the property had been placed on the open market, rather than being compulsorily acquired, an ordinary purchaser would have been unlikely to pay even £1 for it. However, having noted that the historian had been prepared to pay £125,000 for it, the tribunal found that that was the fair measure of compensation payable.
Commercial contracts often endure harmoniously for many years, but their longevity can make termination acrimonious, that was the case for an employment agency that provided staff to a retailer for more than 20 years prior to its replacement following a tendering exercise.
The agency had provided its services under a poorly drafted contract, replete with grammatical errors. This contract served to fuel the dispute, which focused on the transfer of more than 160 agency staff to the rival that replaced it, under the Transfer of Undertakings (Protection of Employment) Regulations 2006 which meant those employees continued to work in the retailer’s shops.
After the agency launched proceedings against the retailer, the High Court found that on a true interpretation of the contract, the agency was entitled to receive transfer or introduction fees in respect of the transferred workers. The retailer’s counter-claim that it had been overcharged by the agency was rejected and it was also ordered to pay more than £68,000 in satisfaction of the agency’s outstanding invoices. Although the exact amount of the agency’s award has yet to be calculated, it valued its claim at more than £550,000, before interest.
It pays to have your commercial contracts reviewed by a Solicitor before you sign them. As this case proves, failure to do so can lead to costly damages in the event of a dispute.
Love is blind and can sometimes lead you into financial folly – the right legal advice, however, can help you to pick up the pieces. In one case, the High Court came to the aid of a wealthy divorcee who unwisely lent her Aston Martin and large sums of money to her fantasist boyfriend.
When the woman met the expensively dressed estate agent whilst home hunting, he appeared to be a man of means, driving a Porsche and owning his own business. His finances were perilous, however, and during their seven-year relationship, she lent him more than £70,000 and bought the £42,000 car for him to drive.
The Court noted that the man appeared to be living in a fantasy world, in which he was always right, and that the woman’s conduct was perhaps naive in retrospect. She felt strongly that she had wasted both her time and her money on him.
After she instructed solicitors, he did not defend her claim for repayment of the loans and judgment was entered against him for £73,366. Following a hearing, she was also awarded £8,495 in respect of damage caused to the Aston Martin whilst it was in his possession.
When people marry late in life they often bring substantial wealth to the marriage and the manner in which such assets should be divided on divorce is often a burning question. The High Court tackled that issue head on in awarding a wife £2.3 million of a total family pot valued at over £10.3 million.
The husband, aged 83, had been widowed for almost 10 years before he married his second wife, who was 17 years his junior. Having had a successful business career, he argued that most of the family wealth had been generated by him and his first wife prior to the marriage. He submitted that the wife’s financial entitlements should be assessed on the basis of her reasonable needs.
For her part, however, the wife argued that the sharing principle should apply and that she should receive half of the total pot. During the marriage, she had thrown herself into helping the husband with his business, which she had been instrumental in turning round from the brink of insolvency.
The Court found that, before the marriage, the husband had built up a substantial bedrock of wealth. He had also not made any specific promise to the wife that she would be entitled to half of everything. However, his business had been losing money heavily before the wife became involved and he had failed properly to acknowledge the value of her contribution.
Factoring in the value of assets that the husband had brought into the marriage, the Court ruled that the wife’s entitlement should be assessed on the basis of need. A global award of £2.3 million to the wife – leaving over 75 per cent of the total pot with the husband – was an entirely fair outcome. The award to the wife was substantially more generous than offers made by the husband during pre-trial negotiations.
This article is featured in the and the full Birmingham Post Rich List can be read at Birmingham Post Rich List 2017.
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