Our lawyers are recommended in The Legal 500 United Kingdom 2018 editorial (listed below)

WEST MIDLANDS
Dispute resolution - Commercial litigation - Birmingham
- Dean Parnell
- Kamal Majevadia

Dispute resolution - Debt recovery
- Kamal Majevadia
- Hayley-Jo Lockley
- Gemma Parker

Finance - Insolvency and corporate recovery
- Leanne Schneider-Rose

Human resources - Employment
- Dean Parnell
- Samantha Glynn

Insurance - Clinical negligence - claimant
- Mike Sutton
- David Lydon
- Adam Hodson
-Stephen Jesson

Insurance - Personal injury - claimant
- Mike Sutton
- David Lydon
- Adam Hodson

Insurance - Professional negligence
- Sundeep Bilkhu

Private client - Contentious trusts and probate
- Kamal Majevadia (leading individual)
- Tracy Creed

Private client - Family - Birmingham
- Karen Moores
- Mauro Vinti

Private client - Personal tax, trusts and probate
-Tracy Creed ~
- Nicholas Bennett
- Ravinder Sandhu

Public sector - Health
- Dean Parnell
- Fahmida Ismail
- Tony Harris (Deceased)

Real estate - Commercial property - Birmingham
- Georgina Walsh
- Div Singh
- Fahmida Ismail

Real estate - Property litigation
- Sundeep Bilkhu
- Kamal Majevadia

January

On 7 January 2019 the Court of Appeal will hear the appeal in BMC Software Ltd v Shaikh, considering whether an employer's breach of the implied sex equality clause could constitute constructive dismissal.

Later in January, the Court of Appeal will hear the appeal in Agoreyo v London Borough of Lambeth, in which it will consider whether the suspension of a teacher accused of having used unreasonable force against children, purportedly to allow a fair investigation to take place, constituted a repudiatory breach of contract.

On 21 and 22 January 2019, the Supreme Court will hear the appeal in Tillman v Egon Zehnder Ltd, in which the Court of Appeal found a six-month non-compete restrictive covenant to be invalid. The restriction, which sought to prevent a former employee from being concerned or interested in any competing business, was deemed impermissibly wide because the phrase "interested in" included holding one share in a publicly quoted company. This will be the first case involving construction of an employment restrictive covenant to be decided by the Supreme Court (or the House of Lords) in over a century.

February

Chief Constable of Norfolk v Coffey, which will be heard by the Court of Appeal, is the first case to directly address the issue of direct discrimination based on perceived disability under the Equality Act 2010.

The Court of Appeal will hear the appeal in Bamieh v Foreign and Commonwealth Office, following the EAT's ruling that an employment tribunal had territorial jurisdiction to hear whistleblowing claims brought by an employee of the Foreign and Commonwealth Office against two colleagues regarding alleged events which took place while all three were on secondment to an EU Mission in Kosovo.

April

The Court of Appeal will hear the appeal in Kocur v Angard Staffing Solutions Ltd, in which it will consider the interpretation of regulation 5(1) of the Agency Workers Regulations 2010 which gives agency workers "the same basic working and employment conditions" as permanent employees after 12 weeks.

X v Y (a case about the retraction of legal advice privilege where there is a strong unambiguous case of injustice) is expected to be heard by the Court of Appeal on 2 October 2019. In this case the email suggested “cloaking” discrimination in a redundancy exercise.   

Finally, we can expect the Supreme Court to hear the appeal in Uber BV and others v Aslam, in which the Court of Appeal recently held, by majority, that Uber drivers are workers. The Court of Appeal gave Uber permission to appeal.

For help and advice on employment matters please contact Emma-Louise Hewitt on 0808 166 8827 or email e.hewitt@sydneymitchell.co.uk

In this article, we have attempted to highlight the key developments coming up in 2019 and beyond.   If you want to keep up to date with the latest developments, then sign up to our newsletter here.

This year is expected to be an eventful year in the world of employment law. Brexit will no doubt continue to dominate the press, a number of legislative measures will be coming into force, we will no doubt hear details of forthcoming employment law reforms, and the courts are set to hear a number of interesting appeals.

So, brace yourselves, the hot topics to look out for in 2019 are as follows:

Employment law reform: The Good Work Plan

On 17 December 2018, the government published the Good Work Plan (“the Plan”), which sets out what it described as "the biggest package of workplace reforms for over 20 years". The Plan builds on the government’s response to the Taylor Review recommendations in February 2018, outlines an intention to improve working conditions for agency workers, zero-hour workers and other atypical workers.  Many of the measures do not yet have specific timescales, but those measures for which legislation has already been published, are mostly due to come into force in April 2020.

These measures include a right for workers to request a more stable and predictable contract, an increase in the period required to break continuity of employment from one week to four weeks, a ban on deductions from staff tips and unsurprisingly a commitment to improve the clarity of the employment status tests, accepting the Taylor Review's recommendation that differences between the status tests in employment law and tax law should be reduced to a minimum to avoid any contradiction or confusion.

In the Agency Workers Regulations 2010, the government intends to repeal the "Swedish derogation" which excludes agency workers from the right to equal pay with comparable directly employed employees if they have an employment contract which guarantees pay between assignments.  This will also amend the Employment Rights Act 1996 to extend the right to a written statement of terms to workers and expand the information which must be provided in these statements.

The plan also proposes new measures which are designed to improve enforcement, by naming and shaming those employers who fail to pay tribunal awards on time as well as significantly increased financial penalties for employers who commit an "aggravated breach" of employment rights.

Increased financial penalties for employers: The draft Employment Rights (Miscellaneous Amendments) Regulations 2019

These are due to come into force on 6 April 2019 and are set to quadruple the maximum penalty for an aggravated breach of employment law from £5,000 to £20,000. Eventually, they will also extend to all workers the right to a written statement of terms and make it easier for employees to request to set up information and consultation arrangements, although these measures will take effect in April 2020.

CEO pay the big out: The Companies (Miscellaneous Reporting) Regulations 2018

This came into force on 1 January and bring in mandatory reporting of the ratio between CEO pay and average staff pay for companies with 250 or more employees, along with other corporate governance changes, all of which will be effective for accounting periods beginning on or after 1 January 2019 (and so the first pay ratio reports will be published in 2020). The measures include the obligation to prepare an annual statement of engagement with employees for companies with 250 or more employees (including details of any information and consultation arrangements, and how directors have had regard to employee interests).

Ethnicity pay gap reporting

On 11 October 2018, the government launched a consultation on mandatory ethnicity pay gap reporting. The consultation seeks employers' views on issues such as reporting methods and closes on 11 January 2019.

Employment status tests

Given the government's commitment in the Good Work Plan to improve the clarity of the employment status tests, including the potential harmonisation of the position under employment and tax law, we can expect to see further developments in this area in 2019.

Itemised payslips

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018 (SI 2018/529) is due to come into force on 6 April 2019. This legislation introduces a right for all workers to be provided with an itemised pay statement and the ability to enforce this right at an employment tribunal.

The Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) Order 2018 (SI 2018/147) is set to come into force on the same day and will require itemised payslips to contain the number of hours paid for where a worker is paid hourly.

National minimum wage

On 17 December 2018, the government launched a consultation seeking views on whether certain aspects of the national minimum wage (“NMW”) legislation should be amended to ensure that they do not inadvertently penalise employers. The consultation focuses on the complex rules on "salaried hours work" (one of four types of work in the National Minimum Wage Regulations 2015 (SI 2015/621) under which employers can average out pay over a calculation year for NMW purposes) and whether they effectively prevent exploitation of workers. The government is also seeking views on the impact of the NMW rules on salary sacrifice schemes, in particular whether employers are withdrawing schemes from low-paid workers in order to avoid non-compliance with the NMW. The consultation closes on 1 March 2019.

Brexit

The Prime Minister had announced that the vote in the House of Commons on the withdrawal agreement and political declaration would now take place in the week commencing 14 January 2019. It is therefore difficult to predict with any certainty the final terms on which the UK will leave the EU, and whether this will take place on 29 March 2019.

Potential developments to look out for:

Non-disclosure agreements

An inquiry was launched into the use of non-disclosure agreements (commonly known as NDAs) in harassment and discrimination cases.

New statutory code of practice on sexual harassment

The Equality and Human Rights Commission have been asked to develop a statutory code of practice on sexual harassment. It is suggested that observing this code will help employers demonstrate that they have taken reasonable steps to prevent sexual harassment from taking place in the work place.

Employment tribunal reforms

The Law Commission launched a consultation on employment tribunal reform. The consultation has sought views on issues such as whether the three-month time limit for most employment tribunal claims should be changed as well as some provisional such as increasing the employment tribunal's £25,000 limit for contract claims. The consultation closes on 11 January 2019.

Reintroduction of employment tribunal fees?

Whilst no timeframe has been suggested, the Ministry of Justice has noted that the Supreme Court judgment in R (on the application of Unison) v Lord Chancellor leaves open the possibility of a new scheme which would strike a balance between increasing employment tribunal funding and safeguarding the delivery of justice. In November 2018 it was suggested in evidence given to the House of Commons Justice Committee that a new fee regime was in development.

Tips and service charges

The government has announced plans for new legislation to prevent employers from keeping tips and service charges intended for workers. No specific timescale has been given, but the government has said that the changes will be introduced at "the earliest opportunity". These plans were reiterated in the government's Good Work Plan published in December 2018.

Grandparental leave

Despite government announcements of plans to extend shared parental leave and pay to working grandparents by 2018, further development is still awaited.

For help and advice on employment matters please contact Emma-Louise Hewitt on 0808 166 8827 or email e.hewitt@sydneymitchell.co.uk

A huge amount of property in the UK – especially commercial property and purpose-built buy-to-let properties such as student accommodation – is owned through the medium of overseas entities, usually in well-known tax havens. Such arrangements are also often accompanied with relatively high levels of service charges which have the effect of making the UK tax yield quite low.

Under such arrangements, the beneficial owners of the property are not public knowledge. There is also a widespread belief that such structures are used to ‘clean’ money derived from criminal activity and tax evasion.

In order to exercise some control over this, a Bill is passing through Parliament which will make it necessary for the beneficial owners of land registered at the Land Registry to be disclosed.

Failing to comply will be a criminal offence (punishable by fines and/or imprisonment) and there will be restrictions on the use or sale of land of which the beneficial ownership is unknown.

The legislation is expected to come into force in 2021.

For help and advice please contact Shilpa Unarkat, s.unarkat@sydneymitchell.co.uk  on 0808 166 8860.

Sydney Mitchell shortlisted for Medium Law Firm of the Year in the The Law Society Legal Awards

Sydney Mitchell are proud to announce that the firm has been shortlisted for Medium Law firm of the Year.  The awards will take place in London on 17th October.

The judges were extremely impressed with the quality of nominations this year. The success stories received featured a remarkable number of inspiring achievements demonstrating the outstanding skills, experience and determination that continues to drive our profession.

Sydney Mitchell are proud to be shortlisted for such a prestigious award. 

We thank our staff for their hard work and excellent service levels that result in our nomination for such awards.

Well done to all for reaching the shortlist.  To put this into context there are 10,500 law firms in the UK so it is a real accolade to be shortlisted.

Good luck to all firms at the Awards in London on 17th October 2018.

A glorious sunny but windy day saw our highly skilled golfers raise a fantastic £2600 for local Midlands’ charities. Ladbrook Park Golf Course was in excellent condition with Midway Care Group winning the competition.

Eastcote Wealth Management came in a very close 2nd place and Fahmida Ismail’s Sydney Mitchell team in 3rd place.  It was an exciting completion with Mulligans, Jokers and a yellow ball thrown in to keep players on their toes.

Freedom Technical won the Yellow Ball competition; the longest drive was won by Andy Chubb of Insol Group and the nearest to the pin winner was Richard Hales of Green Office Technologies.  Unfortunately no one won the £5000 Hole in One Prize on the 12^th however Angela Harrison was the first to get on the green with an impressive drive.

Our two Midlands’ charities will benefit from the £2600 raised on the day; Age UK Solihull* and the Buddy Bags Foundation**.

Div Singh, Senior Partner at Sydney Mitchell commented:

All players showed their generosity in supporting the fundraising and a special thank you to Automated Systems Group who sponsored the 18th hole and to Ladbrook Golf Club for donating a four-ball for the raffle.  £935 was raised from the mulligans and raffles alone.  It is great to be able to raise much needed funds for Age UK Solihull and the Buddy Bag Foundation.

Lorraine Hart of Age UK Solihull commented:

We are really grateful to Sydney Mitchell for organising the Charity Golf Day and would like to thank everyone who supported this event and for selecting Age UK Solihull for their charity this year.  Everyone needs help in later life, and it is great to be able to give that much needed support to older people in the Solihull Borough.

Alison Bird of the Buddy Bag Foundation, added:

The Buddy Bag foundation was set up to help children fleeing violent situations, often having to leave home quickly, without the chance to collect basic items.  Often children arrive in emergency accommodation with just the clothes they are wearing.  Every penny raised by charity goes to creating the Buddy bags that are given to children affected by situations beyond their Control.  Each bag costs £25 and contains the basic toiletries, pyjamas, socks, underwear, book, picture frame and a small teddy bear to provide a little comfort for them.

We thank the generosity of the players and Sydney Mitchell for supporting our Charity.

*Age UK – Solihull provides help and support to older people in the borough of Solihull. The Vision of Age UK Solihull is of a world where older people flourish and our Mission is to improve the lives of all older people in the borough. Most of our services are provided free. All the money we raise stays in solihull to help pay for our services which include information and advice, companionship and practical help.  Find out more at www.ageuksolihull.org.uk.

**The Buddy Bag Foundation was created in response to the rising number of children who enter emergency care after fleeing violent situations at home.  The Foundation helps restore a sense of safety and security into a child’s life during a traumatic time.  By providing these children with a few essential items, the charity can help make the transition into emergency care a little easier.  Over 48000 children require emergency accommodation each year in the UK.  Founder Karen Williams launched the Buddy Bag foundation in 2014 after being inspired by the Alannah and Madeline Foundation in Australia. www.buddybagfoundation.co.uk

Sydney Mitchell LLP is a Legal 500 Top Tier firm based in the Midlands with over 100 employees. 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.

Pictures

Winners – Midway Care Limited; Matt Harrison, Lee Harris, Ian Brown and Angela Harrison with Div Singh, Sydney Mitchell and Kam Majevadia

2^nd Place - Eastcote Wealth Management; Jonathan Hearn, Trevor Law, James Carty, John Ruddick with Div Singh, Sydney Mitchell and Kam Majevadia

3^rd Place – Sydney Mitchell; Fahmida Ismail, Aamer Janjua, Asif Din, Mohammed Shoiab with Div Singh, Sydney Mitchell and Kam Majevadia

Yellow Ball winners – Freedom Technical; Mark Reynolds, Baljit Singh, John McCormack, Narendra Patel

About Age UK Solihull

Age UK – Solihull provides help and support to older people in the borough of Solihull. The Vision of Age UK Solihull is of a world where older people flourish and our Mission is to improve the lives of all older people in the borough. Based at The Core, Central Library Building, Solihull, B91 3RG and in Chelmsley Wood Library. 0121 704 7840 info@ageuksolihull.org.uk Charity number 1055887

About the Buddy Bag Foundation

The Buddy Bag Foundation was created in response to the rising number of children who enter emergency care after fleeing violent situations at home.  The Foundation helps restore a sense of safety and security into a child’s life during a traumatic time.  By providing these children with a few essential items, the charity can help make the transition into emergency care a little easier.  Over 48000 children require emergency accommodation each year in the UK.  Founder Karen Williams launched the Buddy Bag foundation in 2014 after being inspired by the Alannah and Madeline Foundation in Australia. hello@buddybagfoundation.co.uk

www.budybagfoundation.co.uk @buddybagsuk Charity No. 1164916

If people are injured by uninsured drivers on private land, are they entitled to compensation? In a landmark decision, the High Court has answered that question with a resounding yes.

The case concerned a pedestrian who was walking across a private field when he was struck and catastrophically injured by an uninsured 4x4 vehicle. The driver had proceeded from a public road onto a footpath, before ploughing through a barbed wire fence into the field and colliding with him. He suffered a broken neck and was left quadriplegic.

He launched proceedings against the Motor Insurers' Bureau (MIB), an industry body which, by virtue of the Uninsured Drivers Agreement 1999, compensates those who are injured by uninsured drivers. The MIB accepted that the driver was fully liable for the accident. However, it argued that it had no liability to compensate the pedestrian because the accident had neither been caused by, nor arisen from, the use of a vehicle on a road or other public place, within the meaning of Section 145 of the Road Traffic Act 1988.

In ruling on the matter, the Court rejected arguments put forward by the man’s lawyers that the driver’s use of the vehicle on the public road, before he entered the field, was sufficient to meet the statutory test. Their plea that the Act should be interpreted in a manner that rendered the MIB liable also fell on fallow ground. Such an interpretation would go against the grain and thrust of the legislation.

The pedestrian, however, won the argument under European law. The Court found that Directive 2009/103/EC created a directly effective, precise and unconditional obligation on the UK government to ensure compulsory insurance of motor vehicles, including those used on private land. The Court also broke new legal ground in ruling that the MIB is an emanation of the state, and that the Directive is therefore enforceable against it.

The decision meant that the MIB was obliged to pay the pedestrian at least Euros 1 million in compensation, that being the minimum level of cover required, per victim, by the Directive in respect of personal injury. The Court would hear further argument as to whether the European principle of equivalence required that cover to be unlimited.

For help and advice contact Mike Sutton, m.sutton@sydneymitchell.co.uk on 0808 166 8827.

Many blocks of flats are managed by a residents' association, which has the great advantage of affording tenants democratic rights of self-determination. However, as a decision of the Upper Tribunal (UT) showed, such bodies bear onerous, and often complex, legal responsibilities that can only sensibly be tackled with professional advice.

The case concerned a block of 33 flats that had a history of disrepair. The tenant of 13 of those flats was a property company that had not paid service charges for six years since management of the block was taken over by a residents' association from a professional property management firm. That had contributed to the association's accounts showing a growing annual deficit.

After the association launched proceedings, the First-tier Tribunal found that – in respect of one of the company's flats – interim service charge demands served by the association had not complied with the terms of the lease, principally because they were not accompanied by certificates of annual expenditure. The validity of the demands was nevertheless upheld on the basis that the association's errors were not of the essence. The company was ordered to pay £8,840 in service charge arrears.

In ruling on the company's challenge to that ruling, the UT agreed that the demands were valid, but cut the amount of service charges payable by the company almost in half. The association had failed to show that the demands – four of which were in precisely the same sum – were based on genuine and considered estimates of likely expenditure in the succeeding year. The evidence indicated that actual expenditure was about 50 per cent of the sums demanded. The arrears payable by the company were, in those circumstances, reduced to £4,558.

If your block of flats is being badly managed, contact Sundeep Bilkhu, (s.bilkhu@sydneymitchell.co.uk) for advice regarding what you can do on 0808 166 8827.

Judgment debtors sadly often try to wriggle out of payment – but judges will leave no stone unturned in ensuring that court orders are obeyed. The Court of Appeal made that clear in tightening the noose on a businessman who was determined to avoid honouring a bank debt of over $300 million.

The businessman, domiciled in Monaco and described as an ultra-high-net-worth individual, traded in equities and foreign exchange through a company of which he was the sole shareholder and director. The bank launched proceedings after the company failed to meet margin calls and obtained judgment against it for $243 million. With interest and over $36 million in legal costs added, the total judgment debt came to more than $320 million.

During the course of the ensuing enforcement proceedings, a judge had observed that the businessman was someone who was prepared to do what was necessary to avoid paying the debt. The bank claimed that he had failed to comply with a court order requiring him to disclose documents relating to the company’s financial position and sought his committal to prison for contempt. A judge accepted jurisdiction to consider that application.

In dismissing the businessman’s appeal against that decision, the Court noted the powerful public interest in upholding the authority of the courts and the effective enforcement of court orders. The inherent judicial power to commit those in contempt to prison derives from the common law and has never been fully regulated by statute or rules of court. The power is extra-territorial and the businessman’s procedural complaints about the judge’s impeccable ruling were implausible.

For help and advice please contact Gemma Parker on 0808 166 8827