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The definition of ‘disability’ has been the subject of much legal debate ever since the Equality Act 2010 came into force. However, an Employment Tribunal (ET) has shed some much-needed light on the issue in a case concerning a visually impaired office worker.

The woman had worn spectacles since childhood and her eyesight had deteriorated with age. She had suffered from a macular hole and cataracts before starting her employment with a social housing provider, but those conditions had been corrected by surgery and she had described her vision as massively improved.

Her job required her to perform detailed work on a computer for long periods. Hours spent looking at the screen gave her headaches and the glare led to eyestrain. She also had to lean forward from her chair to see words on the screen. She launched proceedings before the ET, claiming that her employer had failed to make reasonable adjustments to her computer to accommodate her visual disability.

In ruling on her claim, the ET noted that she had self-treated her headaches and eyestrain with painkillers and had not consulted her GP or an optician about them. Although her visual problems were not trivial and were a physical impairment, they were no more than minor. Her need to lean forward to view her computer screen also did not amount to a substantial adverse effect on her normal day-to-day activities. The ET’s decision that she was not disabled within the meaning of the Act was fatal to her claim.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

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If you suffer discrimination in the workplace you can be compensated for injury to your feelings as well as for your financial losses. A £12,000 award was made for injury to feelings in one striking case in which a woman was told that she was being made redundant on the same day that she put in a request for maternity leave.

The woman, who had a senior managerial role in a large company, was so upset and shocked on being told that she would lose her job that she had to go on sick leave, suffering from stress. In her absence, her bosses proactively looked for errors in her work and informed her that she faced disciplinary action. She ultimately resigned.

After she took legal advice and lodged a complaint, an Employment Tribunal (ET) found that she had been selected for redundancy because of her request for maternity leave and that the allegations of gross misconduct against her were unjustified and unsustainable. She had thus been constructively dismissed and had suffered unlawful discrimination based on her sex.

Following a further hearing, the ET noted that the circumstances of her departure from the company had resulted in a loss of confidence and mental health problems from which she took some time to recover. In the circumstances, the company was ordered to pay her a total of more than £42,000 in compensation, including the substantial award for injury to her feelings.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

A decree absolute, ending a marriage, does not necessarily signal the end of judicial involvement in divorce. As one High Court case showed, financial arrangements can be revisited in the light of changed circumstances, including children growing up, the formation of new relationships and increases and decreases in income.

The case concerned a middle-aged NHS dentist and his care worker ex-wife who had two children during their 11-year marriage. After their relationship broke down, a decree absolute had been granted in 2011 and the wife had been awarded 53 per cent of the couple’s capital assets. The husband had also been required to pay her £2,250 in monthly maintenance.

The husband had since remarried and his new wife was expecting a baby. Whilst his financial responsibilities had increased, his income was said to have substantially dropped due to changes in NHS funding of dentistry. In those circumstances, a family judge agreed to reduce his maintenance payments to £2,000 per month. Provision was also made for their further reduction in stages as he approached retirement. However, the judge directed that the husband’s NHS pension, worth more than £190,000, should be shared equally with the wife.

The husband remained dissatisfied and, in challenging the judge’s order before the High Court, he presented fresh evidence as to his declining income and increased outgoings. In seeking a clean financial break, he claimed to be facing a deficit between his income and expenditure of £3,360 per month.

In rejecting his appeal, however, the Court could find no sufficient evidential basis on which to interfere with the judge’s clear and comprehensive conclusions. His decision to gradually decrease the wife’s maintenance payments until such time as they would be replaced by the pension sharing order was carefully crafted.

For advice please contact Emma Gray on 0121 746 3300, email emma.gray@sydneymitchell.co.uk or fill in our online enquiry form.

Before accepting an employee’s resignation, it is crucially important to be certain that resignation is their true intention. In one case, an Employment Tribunal (ET) found that a letter in which an employee asked her manager to ‘please accept one month’s notice’ was ambiguous and did not amount to a resignation.

The employee, who was employed by an NHS Trust, was not happy in the department in which she worked and had received a conditional offer of a transfer to another department.  Following an upsetting incident she handed the brief letter to her manager. The transfer offer was subsequently withdrawn in view of her record of sickness absence and her employment with the Trust was terminated after the manager purported to accept her resignation.

In upholding her unfair dismissal claim, the ET found that, taken in context, the letter was not a clear and unambiguous expression of a wish to resign her employment with the Trust. The probability was that the manager had not understood it as such and that the employee had only intended to give notice of her wish to leave the department. The amount of her compensation remains to be assessed.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

The equal sharing principle applies in the vast majority of divorce cases nowadays – even where the sums of money involved are truly enormous. In one High Court case exactly on point, a billionaire oil and gas trader was ordered to pay his ex-wife a total of more than £450 million.

Despite difficulties in their marriage, it had subsisted for more than 20 years before their final separation. Although both Russian-born, they had settled in Britain where they had children together. The husband had enjoyed spectacular business success and the family assets were worth just over £1 billion.

The husband had, for unknown reasons, withdrawn his initial opposition to the wife’s divorce petition and her application for financial relief had thus proceeded on an uncontested basis. There was no evidence to support his plea that he was wealthy before the marriage or that he had made a special contribution to wealth creation through his work. Arguments that the majority of the assets were held by trusts of which the husband was only a discretionary beneficiary also fell on fallow ground.

In the circumstances, the Court found that all the assets concerned were matrimonial in character and that there was no reason of principle why they should not be divided equally. The wife's pre-action offer to settle her claim for £350 million had not been accepted by the husband and was no longer binding upon her. She was awarded in addition a number of chattels, including an Aston Martin car and a modern art collection valued at more than £85 million. The total value of her award was £453,576,152, or 41.5 per cent of the total marital assets.

For advice please contact Teresa Mannion on 0121 746 3300, email t.mannion@sydneymitchell.co.uk or complete our online enquiry.

Disagreements between neighbours can usually be resolved with a little legal advice and goodwill on both sides. However, in one case where that sadly did not happen, a homeowner was left facing a six-figure legal costs bill after an abortive attempt to make an elderly couple move their garden shed and raised flower bed.

The man claimed that the structures encroached on a right of way giving access to the rear of his property. A land conveyance dating back to 1923 stated that the right of way should be 16 feet in width and he launched proceedings on the basis that the shed and flower bed had reduced that to 10.5 feet, creating a bottleneck that could not be passed by larger vehicles.

In rejecting his claim, however, a judge noted that the shed had been in place for more than 30 years, and the flower bed for over 40 years, and that their presence pre-dated construction of his home. When he purchased the plot on which his property was built it could not have been envisaged that he would enjoy a right to drive vehicles over structures that were already in situ.

In dismissing his challenge to that ruling, the Court of Appeal noted that there was no reference to a width of 16 feet in the conveyance by which he acquired the building plot in 2007. By that date the shed and flower bed had already been in place for decades. The man was ordered to pay the legal costs of the case, estimated at about £140,000.

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

Death and taxes are famously inevitable but the collection of revenue can sometimes be tinged with mercy. In one case, a carer who was coping with the loss of both her parents when her self-assessment tax return was due was excused from having to pay £1,300 in late submission penalties.

The self-employed therapist and counsellor had for several years looked after her mother, who had suffered a series of strokes, and her father, who had bowel cancer. The couple died within months of each other and, when she received a notice requiring her to file her tax return, she was in the midst of her bereavement and struggling to sort out their affairs whilst at the same time making a living.

In the circumstances, she missed the final date for filing her tax return by almost eight months and was issued with the penalties. HM Revenue and Customs refused to waive them on the basis that she had managed to run her business during her time of trial and it was her responsibility to deal with her tax affairs efficiently.

In upholding her appeal, however, the First-tier Tribunal found that she had a reasonable excuse for the delay in filing her return. Caring for her suffering and dying parents had taken up every minute of her time that was not devoted to her clients. Once she had managed to get her parents’ affairs in order, she had swiftly taken control of her own paperwork. The penalties were overturned.

For help and guidance on this or other private client matters contact Ravi Sandhu 0121 698 2200 or email, r.sandhu@sydneymitchell.co.uk

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Many people might think those who sleep on the job would not be entitled to be paid the National Minimum Wage (NMW) whilst their eyes are closed, but that is by no means always the case.  The Employment Appeal Tribunal (EAT) has given guidance on the issue in an important test case, particularly for the care sector.

The EAT was dealing with three appeals from Employment Tribunals concerning employees – two of them care workers – whose presence was required at night in order to respond to emergencies or otherwise perform their duties. The cases raised a common issue as to whether they were entitled to receive the NMW for the entirety of their shifts or only for those periods when they were awake.

In ruling on the matters, the EAT noted that a failure to pay the NMW when required can lead to penalties, and potentially criminal sanctions, against employers. The issue was of particular significance to the care sector, in which so-called ‘sleep-in’ shifts are common, and there was a pressing need for certainty in the law.

Recognising the difficulty of the issue, the EAT noted there is a clear dichotomy between those cases where an employee is working merely by being present at an employer’s premises, whether or not provided with sleeping accommodation, and those where an employee is provided with sleeping accommodation and is simply on-call.

There was no single key with which to unlock the issue as to whether the NMW was payable during hours spent asleep. The test was a multi-factorial one that required an assessment of relevant factors, including an employer’s purpose in engaging a particular worker, restrictions on a worker’s personal activities during hours spent on-call, the degree of responsibility undertaken and the immediacy of the requirement to provide services.

The EAT acknowledged that such an approach meant that no one factor could be treated as determinative and did not provide as much clarity as might be desired. However, there was no bright line test and each case was likely to turn on its own facts. One of the appeals, brought by a couple who worked as wardens of a caravan park, was allowed and that matter was remitted to a fresh Employment Tribunal for reconsideration. The other two appeals, each brought by an employer in the care sector, were dismissed.

For further advice please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form

Planning laws are complex and, before putting one brick upon another, it is always wise to seek professional advice. In one case that proved the point, a couple who almost doubled the size of their country cottage without planning permission were ordered to demolish the entire building.

The couple had knocked down a large part of the cottage and replaced it with a new house that had a floor area almost 70 per cent larger than the original and an internal volume nearly 100 per cent bigger. The property was in the Green Belt and the local authority’s response was to issue an enforcement notice requiring them to level the building to the ground.

The notice was later upheld by a government planning inspector on the basis that the works had gone beyond merely extending or enlarging the cottage and that the end result was a ‘new’ building that was fundamentally different from its predecessor. Although it did not have a harmful visual impact or interfere with any important views, it was, by definition, harmful to the openness of the Green Belt. The inspector’s ruling was subsequently upheld by the High Court.

In dismissing the couple’s challenge to the latter ruling, the Court of Appeal rejected arguments that the inspector had failed to adequately consider alternatives to the building's complete demolition. The inspector was entitled to find that it was an integrated whole and could not be split into acceptable and unacceptable parts. The house was an inappropriate development in the Green Belt and there were no very special circumstances that justified its retention.

Arnold & Anr v Secretary of State for Communities and Local Government & Anr. Case Number: C1/2015/1647

For advice please contact Sundeep Bilkhu on 0121 698 2200, email sundeep.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

One of the unfortunate consequences of the prevalence of so called ‘crash for cash’ insurance frauds is that innocent motorists can come under suspicion. In one such case, a taxi driver was cleared of fraud by a judge and awarded more than £28,000 in compensation for his injuries and damage to his vehicle.

The man was at the wheel of his car when another car emerged from a side road and collided with him. He launched a claim against the other driver’s motor insurers but was met by an accusation of fraud. The insurers claimed that the accident had been staged and that both drivers had conspired together in a money-making scheme.

In rejecting those accusations, the judge found that a 999 phone call that the man had made from the scene of the accident had the ring of truth about it. His palpably honest evidence was consistent and convincing and the accident was genuine. The driver of the other car was also an honest witness and the judge was satisfied that neither man had any knowledge of the other before the accident.

The other driver had failed to see 'give way' lines at a junction in snowy conditions and was wholly responsible for the accident. In those circumstances, the man was entitled to full compensation and was awarded £28,070. The facts of the case emerged as the Court of Appeal dismissed the insurers’ challenge to the judge’s decision.

For further information on this article, please contact Mike Sutton on 0121 698 2200, email m.sutton@sydneymitchell.co.uk or fill in our online enquiry form.


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