A recent decision of the Employment Appeal Tribunal (EAT) has emphasised that dishonesty over sickness absence can amount to gross misconduct and give grounds for dismissal (Metroline West Limited v Ajaj).

Mr Ajaj was employed by Metroline West Limited as a bus driver between 2004 and 2014, when he was dismissed for gross misconduct. He alleged that he was badly injured in February 2014 when he slipped and fell on spilt water in a toilet at work. He went on sick leave, claiming that he was not able to carry out his job. He was seen by his employer's occupational health adviser, who concluded that he was not currently fit for driving duties.

Metroline began to doubt the genuineness of the nature and extent of Mr Ajaj's injuries, however, suspecting that the accident may have been staged or that he was exaggerating his injuries. Accordingly, the company placed him under covert surveillance.

Further medical examinations took place and Mr Ajaj continued to assert that his movements were limited. He said that he could not walk for very long, was only able to shop for light things and had difficulty getting dressed. Even when his mobility improved slightly, he declared himself unable to return to his job as he was unable to sit comfortably and could not drive whilst taking strong painkillers. When he was shown surveillance videos of himself carrying two bags of shopping, he claimed that the footage must have been altered. His manager told him that he did not believe that his injuries were as serious as he made out or that his capabilities were as limited as he claimed.

Mr Ajaj was dismissed on the basis that he had tried to perpetrate a fraud, but an Employment Tribunal (ET) subsequently upheld his complaints of unfair and wrongful dismissal. Although the ET accepted that he had deliberately exaggerated his injuries, it found that there was no evidence that he had in fact been capable of sitting down for the long periods required in order to drive a bus. He was awarded compensation on the basis that he was 35 per cent responsible for his own dismissal.

In upholding Metroline's appeal and stripping Mr Ajaj of his award, the EAT found that, having made findings of fact that he did exaggerate his condition, and that this was culpable and misleading, it was perverse of the ET to hold that the dismissal was unfair and wrongful. It had made the mistake of going on to treat the case as if it were a capability dismissal. It had evaluated his conduct by reference to his ability to perform his job as a bus driver, asking the question whether he had absented himself from work and claimed sick pay when he was fit to carry out his duties as a bus driver. This was an irrelevant question in the context of a misconduct case. The question was whether his employer had reasonable grounds for believing that he had misrepresented his injuries and their effects.

The EAT ruled that anyone who dishonestly asserts that they are unfit for work through illness or injury is guilty of a fundamental breach of the trust and confidence which lie at the heart of any employment relationship. In this case, Metroline had a genuine and reasonable belief, based on a reasonable investigation, that Mr Ajaj had attempted to commit fraud and, in upholding his claim, the ET had impermissibly substituted its own view of the facts for that of the employer.

If you would like individual advice on any absence management or conduct issue, please contact one of our Employment Team or Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form.

 

 

“Is a Tenant entitled to a refund of the rents that it paid in advance to the Landlord if it exercises its right to terminate the Lease during a rental period?"

The answer, I’m afraid, is “no”. That is unless there is an express provision in the Lease which entitles the Tenant to a refund.  This is something that should always be negotiated into the Lease by the Tenant or its solicitor as the Landlord’s solicitor won’t, as a matter of course, include this wording in the Lease.

The headline “M&S loses landmark property case in Supreme Court” last year sparked renewed interest in this question.

The court unanimously decided in that case to dismiss Marks & Spencer’s challenge to an appeal court judgment which meant that it was not entitled to a refund of £1.1m in rent for the period of the contract after it left the property. Ouch!

Mr Justice Morgan, sitting in the High Court, ruled that a term should be implied into the Lease to allow M&S to recover the money. He found that such a term was necessary to give business efficacy to the Lease.

Lady Justice Arden, giving judgment on behalf of the appeal court, disagreed. In her view, the Lease would not reasonably be understood to include such an implied term.

The Supreme Court agreed stating that it would be wrong to attribute to a Landlord and Tenant an intention that the Tenant should receive back an apportioned part of the rent that was payable and which was paid in advance.

If you have a break clause in your Lease or if you are about to enter into a Lease with the benefit of a break clause, this should be reviewed to ensure that there is an express provision for a refund and that the break clause is not drafted in a way that could preclude you from successfully terminating the Lease.

For more information, please contact Shilpa Unarkat on 0121 746 3300  / s.unarkat@sydneymitchell.co.uk or Sundeep Bilkhu on 0121 698 2200 / s.bilkhu@sydneymitchell.co.uk

 

The pressure to build more homes is immense and growing – but the High Court’s decision to scotch plans for an 85-unit housing development has shown that it can be outweighed by the importance of preserving heritage assets.

Planning permission for the project had been refused by the local authority but was granted by a government inspector following an appeal by the developer. In his decision, the inspector noted that the local authority could not demonstrate that it had a five-year supply of deliverable housing sites in its area.

The inspector acknowledged that the development would detract from the rural character and appearance of a nearby listed farm but found that the less than substantial harm to the heritage asset was outweighed by the need for more new homes and the desirability of making optimal use of the site.

In overturning the inspector’s decision, however, the Court found that he had applied the wrong test when performing the required balancing exercise. In focusing on the area’s shortfall in housing land supply, he had at best diluted the weight to be given to preserving the heritage asset and its setting. The planning consent was quashed.

Whatever kind of advice and assistance you need, whether as landlord or tenant, for residential property or commercial property, negotiating or enforcing a lease our property lawyers are here to help.

Call Sundeep Bilkhu on 0121 698 2200 or fill in our online enquiry form.

 

A holiday should be a time for rest and recovery. There is nothing worse than being injured on holiday, but if this has happened to you, you need the right specialist to help you. Mike Sutton of Sydney Mitchell LLP discusses how he can help you to recover compensation for your pain, suffering and expenses.

Holiday accidents don’t just include accidents in a hotel, but cover injuries on boats or cruises, in a plane, traveling in cars or rental vehicles, even the beach.  The causes of a holiday accident could include:

  • Wet flooring or misplaced objects causing a slip or trip accident
  • Injuries which occurred on foreign transport
  • An injury that happened when on a day excursion
  • Food poisoning from the hotel restaurant/ buffet
  • Illness resulting from bad hotel hygiene
  • Problems with your rental car that lead to a holiday accident
  • Water sports accidents
  • Skiing accidents

Report the Incident

Where possible, you should also try to ensure that details are recorded in any available accident book and reported to your travel representative.

If appropriate, also report the accident to the hotel and ask that they keep a written record of the event and provide you with a copy of the same.

Keep a Record

It is important to record as much detail as possible. This could include witness information and photographs.

Seek medical assistance as a matter of urgency.   In certain countries, it is a requirement that you seek medical assistance within a very short period of time after the accident in order to maintain your right to pursue a claim for damages. As such, if you have suffered injuries as a result of an accident that occurred in a foreign country, you should seek medical attention as soon as you realise that you have been injured to prevent any suggestion that the injuries could have been suffered in a different location.

Obtain Specialist Advice

As with any personal injury claim, the advice and assistance of a specialist is invaluable.  They can collate all of the relevant information, provide guidance on the injury claim process and negotiate a suitable settlement with the third party insurers.

In every case, medical evidence will be required, and it is necessary to show that the person you are making a claim against owed you a duty of care, that they breached that duty of care (were negligent), and that the injury you sustained was a reasonably foreseeable consequence of that negligence.

Please contact Mike Sutton or one of our specialist Personal Injury Specialists at Sydney Mitchell on 0121 698 2200 or via email to pi@sydneymitchell.co.uk.

Leases are not just pieces of paper.  It’s always wise for a potential tenant to seek legal advice so that they’re “in the know” and understand the implications of the words that are written in the document that they are asked to sign before they take occupation of their property.

Heads of Terms (covering the main points such as the length of term, rental, any rent free period, break right, the repairing obligation, rent deposit requirement etc.) will usually be drawn up by a Landlord or its agent and will be put to the Tenant.  There may be little or no negotiation and these Heads of Terms (together with other terms which weren’t necessarily discussed or agreed at the time) will then find their way into a Lease, a legally binding 30-40 page contract between the Landlord and the Tenant.

The importance of “knowing your Lease” has been highlighted by a case which involved a residential property tenant. The flat tenant’s 99 year Lease included a covenant that it must not cut, maim, alter or injure any of the property’s principal walls without the Landlord’s prior consent.

When the boiler in the flat broke down, the Tenant employed a plumber to install a new condensing unit which involved cutting at least one new hole into a flank wall to make way for an exhaust vent and waste pipe. 

The Landlord sought to forfeit the Lease on the basis that the Tenant had breached the covenant of the Lease as it had not obtained its consent to the works. 

Forfeiture was not granted on this occasion as the breach was described as modest and if the Landlord was successful, it would obtain only nominal damages.

The parties were advised to reach a sensible compromise rather than continue with the court proceedings.

The point hSundeep Bilkhuowever is that had the Tenant known about his obligation to seek his Landlord’s consent before carrying out the works and made application to obtain it, he would not have ended up defending a claim for forfeiture of his Lease.

If you are an existing Tenant or you are proposing to enter into a Lease, get in touch today for a Lease Health Check and we’ll let you know what you need to know.

For more information, please contact Shilpa Unarkat on 0121 746 3300  / s.unarkat@sydneymitchell.co.uk or Sundeep Bilkhu on 0121 698 2200 / s.bilkhu@sydneymitchell.co.uk

It is a fact of life that no one knows which day will be their last, but that is not a good reason for putting off making a will. In one case, an 84-year-old man’s failure to make a will consigned his two children to a decade-long battle about the distribution of his estate.

The pensioner, although apparently in good health, died suddenly in 2005 from a stroke without making a will. His estate, which was worth about £550,000, would normally have been split equally between his two children. However, his son claimed that he had promised him that he would inherit everything and that he would sign a will to that effect.

The son argued that, in reliance on his father’s word, he had devoted his life to working in the family business, caring for his parents and improving their home, in which he still lived. His sister, however, pointed out that he had received lifetime gifts from their father worth £470,000 and accused him of being greedy.

The High Court found that the son had not been given an assurance that he would inherit the whole of his father’s estate. He was, however, entitled to 20 per cent of the equity in the family home to reflect the money and effort he had put into constructing a self-contained flat within it. He would have to share the remainder of the estate equally with his sister.

The Court noted that the estate’s liability to inheritance tax, the costs of the prolonged proceedings and the cost of the administration of the estate, meant that the son would have to move out of the family home in any event so that it could be sold. He was given two weeks in which to vacate the property.

Contact Tracy Creed on 0121 746 3300 or t.creed@sydneymitchell.co.uk or fill in our onlne enquiry form.

Working at height can be extremely hazardous and rigorous rules are in place to ensure that employers guard against the obvious risks. In one case, a company which failed to match up to its legal obligations was taken to task by a health and safety inspector and ended up embroiled in costly litigation.

The company had been engaged to carry out maintenance work on the roof of commercial premises. When a health and safety inspector made an unannounced visit to the site, two self-employed subcontractors were working on the roof, which was fitted with numerous fragile roof lights.

The method of work in use was to place plywood boards over the roof lights nearest to where the men were working. The company argued that that represented an ‘industry standard’ means of ensuring safety at heights and that the men were fully trained for the task they were carrying out.

health and safety law sydney mitchell solicitorsThe inspector took the view that the safety measures were inadequate and issued a prohibition notice, requiring work on the roof to cease until the matters set out in the notice were remedied. The notice was, however, subsequently overturned by an Employment Tribunal on the basis that the method employed was reasonably safe.

In upholding the inspector’s challenge to that decision, the High Court noted that no amount of training could rule out the possibility of a fall through an uncovered roof light due to illness, inadvertence or stupidity. The company had failed to provide necessary equipment to ensure the men’s safety or to take all reasonably practicable steps to minimise, or eliminate, the risk of such an accident.

Even if the method of work used conformed to standard industry practice, it did not follow that it necessarily complied with the requirements of the Health and Safety at Work etc. Act 1974 or the Work at Height Regulations 2005. In those circumstances, the prohibition notice was upheld.

For further information or advice about Health and Safety Law, please read our page about Health and Safety Law call Dean Parnell, Head of Employment Department on 0121 698 2200 or contact us online

For further information on these and any other employment issues please contact our Employment Team on 0121 698 2200 or via our online enquiry form.

 

A High Court case has vividly illustrated why professional advice is needed not only in drafting contracts but in administering them thereafter. A company was left on the brink of insolvency by its failure to submit a valid application for a stage payment during refurbishment of an office block.

The company had sought an interim payment of about £1.1 million from the block’s freeholder. Having not received that sum, it was unable to pay its subcontractors and was subject to a winding-up petition presented by an unpaid creditor.

The company claimed that the freeholder’s reasons for withholding payment were spurious and sought an injunction requiring immediate settlement. In refusing relief, however, the Court noted that the contract clearly stated that such applications for stage payments had to be free of ambiguity and state in terms the amount sought and the date on which it was due.

The company’s application did not meet those requirements and was thus invalid. Whilst acknowledging that this was a harsh result for the company, the Court noted that this was an area of the law where there was little scope for latitude.

For more information on this article or other contract or insolvency related matters, please contact John Irving j.irving@sydneymitchell.co.uk or Leanne Schneider-Rose l.schneider-rose@sydneymitchell.co.uk or contact us via our online enquiry form or call us on 0121 746 3360.

One might have thought that a successful businessman worth millions would think it wise to spend a little money on getting his will professionally drafted. However, his decision to do the job himself had catastrophic consequences for his family, who ended up battling it out over his estate in the High Court.

The man’s estate, not including his £4.25 million family home, had been valued at about £6.8 million. His widow inherited the property and about £1.6 million in other assets under his home-made will. However, after debts and other liabilities, she argued that she had been left with liquid capital of less than £700,000.

That, she argued, was insufficient to enable her to maintain the luxurious lifestyle that she had enjoyed with her husband when he was alive. She argued that he had not made reasonable provision for her in his will on the basis that she required sufficient capital to provide her with an annual income of £372,000. She asked the Court to award her an additional £3.75 million from the estate.

In dismissing her claim, however, the Court noted that she had been awarded almost £2 million in compensation following her husband’s death in a helicopter crash. She had been a successful businesswoman in her own right and would have significant earning potential if she returned to work. Her needs were not as extensive as she claimed and she needed an income of, at most, £240,000 a year. Noting that her total assets, including her home, were worth about £10 million, the Court found that reasonable provision had been made for her.

For more information on this or contesting a will or probate matter; please contact Kam Majevadia or Ravi Sandhu on 0121 698 2200 or fill in our online enquiry form.

Absentee fathers have a legal duty to financially support their children – but only within reason. That point was strikingly made in one case in which a mother sought £780,000 a year in maintenance for her seven-year-old son from an extremely wealthy father who had shown no interest in the boy and had never even seen him.

The mother was adamant that her son should enjoy the same glittering lifestyle as his father, who was a member of a Middle Eastern royal family. Despite his youth, she argued that his father should buy him membership of prestigious golf clubs and private boxes at sporting events. It was submitted that his essential needs included a nanny, governess and housekeeper and regular first class holiday flights.

Family lawyer Amanda Holland comments:

Maintenance should be set at a reasonable level: this does not normally mean an obligation to pay for a luxury lifestyle.

The father, whose Islamic marriage to the mother was not recognised under English law, had been paying £204,000 a year in maintenance for his son for almost three years. He had provided the mother and son with a £3.45 million home and had paid off her £770,000 debts, although she was again in financial difficulties. She had pursued her son's financial claims through the courts over a number of years, running up several million pounds in legal costs, almost all of which the father had paid.

The mother bore sole responsibility for bringing up the boy, who suffers from serious health problems. However, in striking out her application to more than triple the father's maintenance payments, the High Court found that she was prone to chaotic, unwise and impulsive decision-making and that her demands were unreasonable. The maintenance which the boy currently received from his father was suitable and appropriate for his upkeep and welfare.

For further information on advice on negotiating fair financial terms on a family break-up or other family related matters, 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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