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The dividing line between ‘workers’ and ‘employees’ can be very difficult to discern, but is of the greatest significance. That was certainly so in the case of one man who worked for a charity for years without any form of written contract.

The man, who started out as a paid intern on a trial basis, received about £1,000 a month for performing a wide range of tasks, many of them concerned with assisting the charity’s founder in dealing with personal matters. Neither he nor the charity made any account for Income Tax or National Insurance Contributions.

Following his acrimonious departure, he lodged complaints with an Employment Tribunal (ET), which accepted that he was a worker but found that he was not an employee within the meaning of the Employment Rights Act 1996.

The ET found that the absence of a written contract or provision for holiday pay, and the fact that he was generally only remunerated when he worked, were inconsistent with employment status. As a result of that ruling, his whistleblowing and unfair dismissal claims were struck out.

In upholding his challenge to those aspects of the decision that were adverse to him, the Employment Appeal Tribunal found that the ET had erred in law. Those factors that were said to be inconsistent with employment status were in truth no more than pointers in that direction. The ET had also made an apparent factual mistake in respect of his receipt of holiday pay. The case was sent back to the same ET for fresh consideration.

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

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.

For advice please contact our contentious probate team on 0121 746 3300.

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.

If you need family law or child-care advice, contact Teresa Mannion on 0121 746 3300 or a member of the family law department  or complete our online enquiry.

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.

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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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.

For advice on any employment law advice, please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form if you need further assistance.

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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.

For advice on any employment law advice, please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form if you need further assistance.

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.

Please contact Amanda Holland on 0121 698 2245, email a.holland@sydneymitchell.co.uk to arrange an appointment or complete our online contact form and we will call you back.

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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.

For advice on any employment law advice, please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form if you need further assistance.

The Government has published the draft National Minimum Wage (Amendment) Regulations 2017, which are due to come into force on 1 April 2017.

The revised rates are as follows:

  • The National Living Wage for those aged 25 and over will increase from £7.20 per hour to £7.50 per hour;
  • The National Minimum Wage (NMW) for 21- to 24-year-olds will increase from £6.95 per hour to £7.05;
  • The NMW for 18- to 20-year-olds will increase from £5.55 per hour to £5.60;
  • The NMW for 16- and 17-year-olds will increase from £4.00 per hour to £4.05; and
  • The apprentice rate of the NMW, which applies to apprentices aged under 19 or those aged 19 or over and in the first year of their apprenticeship, will increase from £3.40 per hour to £3.50.

The accommodation offset will increase from £6.00 per day to £6.40 per day.

For advice on any employment law advice, please contact Jade Linton on 0121 746 3300, email j.linton@sydneymitchell.co.uk or fill in our online enquiry form if you need further assistance.

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.

For further information and advice, please contact Dispute Resolution Team on 0121 698 2200, email s.bilkhu@sydneymitchell.co.uk or fill in our online enquiry form.

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